Signatures Dont Matter - A Post -Mortem Of Prof. Kumado's Epistle

Africanus Owusu-Ansah

Angelo (to Escalus): Because we see it, but what we do not see

We tread upon and never think of it.
You may not so extenuate his offence
For I have had such faults, but rather tell me,

When I, that censure him, do so offend,
Let mine own judgement pattern out my death,

And nothing come in partial. Sir, he must die.

Jacques (to Rosalind): I have neither the scholar's melancholy, which is emulation, nor the musician's, which is fantastical, nor the courtier's which is proud, nor the soldier's which is ambition, nor the lawyer's which is politic.

As You Like It
William Shakespeare
PROFESSOR KOFI KUMADO asks two very simple innocuous questions and wants all of us to help him excoriate them, cogitate, and find answers to them. 'The first question is this, what is the value in the law of a Marriage Certificate which is signed by the couple and their witnesses but is not signed by the Registrar or the celebrating pastor? The second question is -As a law teacher, how do you extract teaching materials for your students from judgment based on just the feelings of the judges?

Kofi is neither a nitwit nor a half wit; neither a dolt nor a sap, neither a twit nor a gawk. Indeed, he is a professor of law, having taught student-lawyers, for well over thirty years at the Faculty of Law at the University of Ghana, Legon, until he was reassigned as the Director of the Legon Centre for International Affairs (LECIA). And, I am yet to find anyone else who has stayed on the campus of Legon longer than he. During holidays, when other students had left for their individual homes and hovels, Kofi would register and stay on campus - that is, since 1970 when he was a student at the Law Faculty. Perhaps, he relished the ambiance of Commonwealth Hall so much; he preferred to savour the least whiff of it.

Why would a law lecturer ask us: lawyers, commoners, plebeians, untutored persons, simpletons, the masses, the multitude, Joe Blow, Jane Doe, the rank and file and illiterate folks in law to help him to find answers to a philosophically legal question? Does that not beguile his intention or motive? Or is he employing sarcasm to achieve a purpose? This throws one's mind back to ancient Greece to about 500 years before Christ was born, in the days of Protagoras, Pyrrho, Socrates, Plato and many other great thinkers and the emergence of 'Skepticism' or 'Scepticism'. 'Skepticism' is generally any questioning attitude towards knowledge, facts, opinions, or doubt regarding claims that others take for granted. 'Philosophical skepticism' is the approach that requires every information to be well supported by evidence. It may refer to a position of doubt or a disposition towards incredulity in a general sense or towards a particular object; it may also refer to the doctrine that proposes that true knowledge is uncertain; or refer to the method of suspended judgment or systematic doubt.

'Academic skepticism' is the ancient variant of 'Platonism' that claimed that knowledge of truth was impossible. The ancient Greek 'sophists' were mostly skeptics. 'Sophism' or 'sophistry' is now interpreted as a plausible but fallacious argument especially one intended to deceive or display ingenuity in reasoning; or a specious, over -subtle reasoning; or casuistry. In ancient Greek, sophists were great teachers who specialized in using techniques of philosophy and rhetoric to teach 'arete' (excellence or virtue) to young statesmen and nobility - to be persuasive in ancient Greek  was to aspire to political power and economic wealth, hence knowledge of public speaking was earnestly sought for by those who wanted to be successful in life.

Sophists believed that 'law' was 'an agreement between people' and that 'justice was non - existent'. Protagoras, Gorgias, Prodicus, Hippias, Thrasymacus, Lycophron, Callicles, Antiphon were all sophists.  Protogoras, for example, insisted that 'man is the measure of all things'.

One day an excited Hippocrates wanted to visit the court of Protagoras but Socrates warned him that 'Sophists are dangerous. The words of Sophists go straight into the soul (psuche) and can corrupt a person immediately. Buying wisdom from a Sophist is different from buying food and drink from the market. With food and drink, even though you never know what  you are getting, you can consult experts for advice before consuming what might be dangerous',

When Socrates engaged Protagoras in 'dialogue', he accused Protagoras of being 'long - winded like a gong that booms when you strike it and won't stop until you lay hand on it' -such a dialogue revealed how Socrates and a sophist would confront each other in a situation where the latter would use long, eloquent speech to hide arguments that might not be able to stand logical scrutiny but the former may use the simple question-and - answer format to a logical conclusion.

In his 25-page judgment, Justice Gbadegbe on one of the Petitioners' claims noted: 'The interpretation of Article 49 of the Constitution that has been urged on us in these proceedings does not commend itself to me. That interpretation seeks to constitute Presiding Officers into a special class of actors in the electoral process. I am unable to understand that although they actually presided over the elections and the counting of the ballots and caused polling agents to sign the declaration of the results which they thereafter openly announced to the public and had a copy thereof posted at the polling station. By merely not signing the result sheet (emphasis the author's)… the entire process should be invalidated'? For the avoidance of doubt, Article 49 is repeated here: '(1) At any public election or referendum, voting shall be by secret ballot. (2) Immediately after the close of the poll, the presiding officer shall, in the presence of such of the candidates or their representatives and their polling agents as are present, proceed to count, at that polling station, the ballot papers of that station and record the votes cast in favour of each candidate or question. (3) The presiding officer, the candidates or their representatives and, in the case of a referendum, the parties contesting or their agents and the polling agents, if any, shall then sign a declaration stating (a) the polling station; and (b) the number of votes cast in favour of each candidate or question; and the presiding officer shall, there and then, announce the results of the voting at that polling station before communicating them to the returning officer.'

So Justice Gbadegbe was adopting the 'substantive approach' rather than the 'procedural approach' to address the issue? Until the judgment of the Supreme Court (which has become  the precedent, to be quoted to support one's case) I thought I had sufficiently digested and congested the late EEK Edzii's 'interpretation' of 'shall' for the 'third person' (singular or plural). I'll ('will' or 'shall' for first person singular) have to revise my notes, or dis - learn or un - learn what I had learned or rather been taught.

There is a provision in our 'Interpretation Act' for 'shall' and 'may' which declares that the expression 'shall' is imperative and mandatory. And when a legislation states, 'It shall be the duty of…' OR 'a person shall…' it makes the legislation simpler, shorter, and neater and it should be construed as imposing an obligation. As noted by V.C.R.A.C. Crabbe in 'Understanding Statutes': 'In its ordinary signification, 'shall' is a word of command. It is a word which should normally be given a compulsory meaning, because it is intended to denote an obligation. The auxiliary verb 'shall' should be used only where a person is commanded to do something'.

And Justice Gbadegbe makes reference to the courts in the United States of America, and argues that over there, they utilize the word 'shall' to mean 'substantial and not complete literal compliance'. So, what?

If I were one of the Justices of the Supreme Court ( and some lawyers  never aspire to be one, to prevent some petty communal convivialities of life ) I would have adopted the 'classical definition' of 'shall', in order not to rock the boat but rather maintain the status quo, and  state: '…. 'shall' is compulsive, compulsory, compelling, obligatory, binding, indispensable, peremptory on the presiding officers to sign the pink or blue or green sheets, but in the particular instance of the 2012 presidential election petition, the effect of the presiding officers not signing was not substantial enough to overturn the results in the petitioners' favour…'.

Both the Petitioners and the Respondents would feel satisfied, and Ghana's law would not be strained.

This would not have prompted the Socratic or Platonic or Pyrrhonic question, as posed by Professor Kofi Kumado. Would a banker be justified in rejecting a cheque that has not been signed? Would a court be justified in throwing out an agreement that has not been signed? So, the kumadonic debate continues: what is the law on 'shall'? Who will or shall (I am confused as a Tutor of English) ultimately win the battle: Socrates or Protagoras?

Africanus Owusu-Ansah
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P.S. If you are confused reading this piece, note the bewilderment in reading Justice Gbadegbe's judgment.