Consumer Protection In Ghana – Time And Need For Legislation

“A Customer is the most important visitor on our premises, he is not dependent on us. We are dependent on him. He is not an interruption in our work. He is the purpose of it. He is not an outsider in our business. He is part of it. We are not doing him a favour by serving him. He is doing us a favour by giving us the opportunity to do so.” Mahatma Ghandi, an Indian Lawyer.

Introduction
The subject of Consumer Protection, Customer or Client Service and satisfaction is one that is usually topical for business persons. The Customer, Consumer or Client as the case may be, is the most important asset of the business because without them, the business has not business doing business. Time was when service providers, be it suppliers of items, providers of professional or other services, saw themselves as ‘tin gods’. Marketing scholars have emphasized the importance of the customer with clichés like, “the Customer is King”, “the Customer is always right” etc. These clichés and many others like them in the author’s view, do not in the least imply that the customer is superior to the service provider, neither does it imply the infallibility of the customer. It emphasizes the point that in all things, the customer must be prioritized. The author takes the view that customer protection and satisfaction is actually essential to all service providers, including without limitations to financial institutions, insurance companies, churches, medical facilities and the author dare says, even the members of the learned professions. Indeed, the foremost statement on marketing cited supra was not rendered by a known marketer, but an Indian Lawyer, Mahatma Ghandi.

In this paper the author examines the subject of Consumer Protection in Ghana, discusses the principles on Consumer protections and highlight the need for more awareness to be created on the subject for consumers to know their rights and obligations relative to the goods and services they patronize. Underscoring this is the fact that there is a seeming contract between the service provider and the consumer and there must not be an unresolved conflict. The author concludes by advocating for the need to have a specific Consumer Protection Legislation in Ghana.

Who is a Consumer? Customer? Client?
A Customer is one who patronizes goods or services. A customer is the one who with consideration purchases a product or services that satisfies his or her need. He or she may or may not be the ultimate end user or consumer. The Black law’s dictionary defines

A Client is usually used for persons who procures services of other persons, be it professionals or otherwise. For instance, a lawyer providing legal services provides same to Clients, doctors, nurses and pharmacists have patience as their clients, a mechanic has the car owner or driver as his or her client. According to the Black law’s dictionary a “Client is a person or entity that employs a professional for advice or help in that professional’s line of work”

A Consumer is the end user of the product or services. The Black law’s dictionary defines a Consumer as “A person who buys goods or services for personal, family, or household use, with no intention of resale; a natural person who uses products for personal rather than business purposes.” He may or may not be the one who purchased or procured the product or service.

Relationship between Marketing Mix and the Consumer/Customer

The ‘4Ps’ of Marketing are; Product, Price, Place and Promotion it seems to the author are all geared towards satisfying the customer or the end user consumer. Before product conception, there must be an indication of the problem the product seeks to solve, who will need the product (customer). The second P which is Price, is the amount consumers or customers will be willing to pay for the product. The business cannot make the needed profit or sales if the product is priced in a manner that the customer cannot afford or pay. Based on the effect the business wants to have, they may either raise the price of the product to give it the appearance of luxury or exclusivity. On the other hand, they may lower the price in order to get more customers. This shows that the customer or consumer is still at the centre of the second P of the marketing mix. The next P in the marketing mix is the Place where the goods or service will be available. Place therefore deals with the consideration of where the product or service will be available to be accessed by the customer or consumer, whether virtually online or physically in brick and mortar. This decision is made with the customer in focus. The last P in the marketing mix is Promotion which deals with communicating about the product to customer or consumers. It may take the form of advertisement, public relations and other forms. Promotion may be used to introduce the product or service to customers or remind customers of the existence of same. All these bring to the fore the importance of ensuring that the customer gets the best of service experience and the consumer is well protected in the usage of the product or service as the case may be.

What is Consumer Protection
“Consumer Protection has been defined as the practice of safeguarding buyers of goods and service and the public against unfair[1] practices in the market place.”[2] It seeks to ensure that there are measures in place to ensure that customers, consumers and clients of services as the case may be get the best protection and satisfaction from the products and services they procure.

Consumer Rights
As a consumer or customer, the author takes the view that it goes without saying that one must have certain minimum rights to which he or she may be entitled. A customer or consumer exchanges something for product or service he or she purchases or procures. The author discusses some rights that consumers or customer must at the barest minimum.

1. Right to Safety – This refers to the right of the consumer to be protected from the marketing and sale of products that are hazardous or poses a danger to human life and proper. The items and services offered and rendered must be safe when used appropriately. It is important in this regard that products must come with directions to use to guide consumers about the usage of same.
2. Right to be informed – The consumer must have adequate, reliable and sufficient information about the products or services in order to make informed decisions or choice about the product. The consumer is a rational being who makes choices based on his or her needs and the utility to be derived from the product or service. When information is available and reliable, it allows the consumer or customer to have the right to choose from varieties, thereby not limiting the consumer to limited options.
3. Right to be heard –This is the right to have interests, concerns and complaints heard by the service provider and considered towards a resolution. Consumers who purchase products or procure services must be able to give feedback to the service provider. Therefore, necessity is laid on the service provider to have a mechanism for taking feedback from consumers.

Principles of Consumer Protection

1. Appropriate Product and Service design and delivery

The customer, consumer or client the world over is looking for a specific need. Marketing as a function has been variously defined as an attempt to find the customer need and satisfy same. A foremost marketing scholar and the Father of Modern Marketing, Dr. Philip Kotler[3], has defined Marketing thus “the science and art of exploring, creating, and delivering value to satisfy the needs of a target marker at a profit.” Peter Drucker for his part had this to say about the aim of marketing, “The aim of marketing is to make selling unnecessary.” It refers to the process by which companies create value for customers and build strong customer relationship in order to capture customers in return. This shows that in delivering products and services, attention must be paid to the slightest of detail to the needs of the customer and attempt made to satisfy the customer and even exceed customer expectation.

Getting the appropriate product and service delivered implies doing some sort of marketing research to ascertain the specific needs of the customers and consumers, monitoring to ensure that same is delivered and even being interested in feedback from customer and consumers and using the feedback to improve upon standards. The modern day customer, consumer or client is sophisticated and knows not only his or her rights regarding what he or she wants, but is also daring to take the service provider on should they fall short. Every product or service provider must aim to deliver appropriate product and service in order to avoid unnecessary customer or consumer casualties

2. Prevention of Over indebtedness

For providers in the financial space, like Banks, Specialized Deposit Taking Institutions, over lending has been identified as one thing to avoid since that has the tendency to cause a significant harm to the customer and institution. In the space of lending or giving credit facilities, the case must not be that the service provider is over lending or granting every facility request with the sole aim of deploying the funds with an expectation on some returns at some point in the future.

The process of granting credit facilities must be carefully defined, monitored and measures like eligibility criteria, collateral security and perfection thereof etc to ensure that persons who take facilities are committed to repayment of same, that loans are granted on the basis of need and customer’s capacity to repay. Over indebtedness implies granting loans to customers such that it gets to a time they are unable to pay and the lender has to take steps to recover

3. Ensure Transparency

Transparency implies being open and not hiding anything from the customer, consumer or the client as the case may be. The service provider whether financial, medical or legal must be in the position to communicate clearly, sufficiently and timely with the customer, consumer or client in plain language understandable by same. This way, the customer, consumer or client is able to make informed decisions based on the transparency. Usually, customers, consumers and clients complain of not knowing the full details about a product, terms and conditions under which same is offered and only get to know after a certain time. For service providers in the financial space, particularly the regulated industry, the law requires for instance that there must be signed a pre-agreement disclosure before the execution of the main credit agreement. Section 57(1) of the Borrowers and Lenders Act (2020) Act 1052 provides in this regard that “A lender shall provide a borrower with a clear, comprehensive and accurate information regarding a credit agreement and shall inform the borrower of the rights and responsibilities of that borrower”. The law therefore makes it mandatory that even prior to the execution of the credit agreement, the fine details are made available to the borrower/customer. Without providing the pre-agreement disclosure statement, a lender regulated by the Bank of Ghana cannot conclude a credit agreement.[4] The pre-agreement disclosures including details like the principal amount, proposed disbursement schedule, applicable interest rate, amount involved, proposes repayment schedule etc. (See section 57(3) of Act 1052.) The essense of these provisions is to ensure there is absolute transparency in dealing with customers, so much so that the law provides that any charges that are not disclosed to the borrower/customer in the pre-agreement disclosure prior to the signing of the credit agreement is not payble and if already paid shall be refunded.[5] A lender who contravenes this section shall be liable to pay an administrative penalty of Twelve Thousand Ghana Cedis[6] The service provider therefore must be transparent about the terms and condition, must ensure timely and appropriate communication with customer.

4. Responsible Pricing

The prime motive of the service provider is profit maximization. There is therefore a reasonable expectation that the service provider must ensure that their revenue far exceeds their cost. Therein lies the need for pricing. After the cost of the product or service, the service provider is entitled to add a margin as his profit to arrive at the selling price. Service providers have the tendency to transfer costs to the customer but steps must be ensured to prevent unnecessary transfer of costs to the customer, thereby resulting in irresponsible pricing. The pricing must be reasonable, not exorbitant, not one that would tale

5. Fair and Responsible treatment of Consumers

Consumers being the end or final users of products or services must be treated fairly and in a responsible matter, with utmost courtesy, without disrespect. Customer service as a function or experience must not be limited only to customers without paying attention to the end users. When consumers are treated with respect and fairly it is the service provider who actually stand to benefit usually by way of renewed business and referrals. Treatment of consumers fairly and responsibly may include listening to client complaints and feedback after use of product, rendering effective after sales services and other services to enable the customer or consumer has the best experience in the use of the product or service as the case may be.

6. Privacy of Consumer Data

Businesses collect customer data and information for processing and other purposes. Customer data or information may include their names, date and place of birth, contact numbers, marital status, National Identification Number etc. Customer information must be treated with utmost confidentiality since the customer or consumer does not intend same to be in the hands of other third parties.

Privacy of Consumer data and information is so important that it is sanctioned by the Constitution and other legislation. Article 18(2) of the 1992 Constitution for instance provides that “No person shall be subjected to interference with the privacy of his home, property, correspondence or communication, except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of the rights or freedoms of others.” The customer or consumer is therefore entitled to his or her privacy such that if communication or correspondence were not meant for third parties, it must not be accessible to such persons. This is even applicable to telephone communication with customers on telephone. A caution in this regard was given by the Supreme Court of Ghana in the case of Raphael Cubagee v Michael Yeboah Asare and 2 Others (Reference No. J6/04/2017, judgment on 28^th February, 2018) a case in which someone had secretly recorded private conversation of another. The Court had this to say regarding breach of privacy, “It would be wrong for the person at the other end to assume that the speaker has waived his rights of privacy and consented to him recording the conversation and rendering it in a permanent state. Therefore, to record someone with whom you are having a telephone conversation is to interfere with his privacy beyond what he has consented to. In similar vein, it would amount to breach of privacy to put your phone on loud speaker for the listening of third parties when you have a telephone conversation with another person because to do so would be causing an intrusion into the caller’s private sphere beyond what she consented to. Before recording someone or allowing third parties to listen to what he says on telephone, his consent must be sought or he must be informed such that he can decide to end the call if he does not want to be recorded or heard by third parties. We are in an environment where people take the rights of their neighbours very lightly. We are therefore not persuaded to join those jurisdictions that permit secret telephone recording by a party to the conversation.” This is a caution applicable to all service providers who must not take the privacy rights of customers for granted.

Another aspect relevant to this is the requirements under the Data Protection Act, 2013 (Act 843) which is a law enacted among others to protect the privacy of the individual and personal data by regulating the processing of personal information, to provide the process to obtain, hold, use or disclose personal information and for other related matters. This shows the importance attached to data privacy or protection by the state. The law establishes the Data Protection Centre and provides in section 17 for the Privacy of individual thus “A person who processes data shall take into account the privacy of the individual by applying the following principles: (a) accountability, (b) lawfulness of processing, (c) specification of purpose, (d) compatibility of further processing with purpose of collection, (e) quality of information, (f) openness, (g) data security safeguards and (h) data subject participation.” This means therefore that businesses or service providers who handle customer or consumer data are guided by these strict rules and they contravene them at their own expense. Consumer or customer data collected must not be used for unlawful purposes, it should be used solely for the purposes for which it was collected and if it must be used for other purposes, it must be consistent or compatible with the, in purpose and their consent sought. There must be openness, transparency, adequate data security safeguards in place to avoid data compromises and data subject participation must be adhered to. Further section 18 of the Data Protection Act provides that “A person who processes personal data shall ensure that the personal data is processed (a) without infringing the privacy rights of the data subject, (b) in a lawful manner; and (c) in a reasonable manner.” It is suggested that processing data without infringing on the privacy rights implies that such processing must have regard to the constitutional injunction cited supra and previously discussed.

Under Banking law, customer information must also be protected and not unlawfully disclosed. Customer account information like account names, account numbers, account balances, account statements etch must not be released to third parties. At common law the case of Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 gave only four exceptions to this rule as where compelled by (1) law, (2) public duty, (3) interest of the bank, or (4) where the client has consented, even implicitly to disclosure. These common law exceptions have been given statutory status in the Banks and Specialized Deposit Taking Institutions Act 2016 (Act 930) and provided for the statutory exceptions and given express conditions under which customer information can be disclosed or compromised. Section 146 on Secrecy of Customer Information provides in that regard in subsection 4 that “The duty of confidentiality imposed under this section shall not apply where (a) a customer issued with a credit card or charge card by a bank or specialized deposit-taking institution, has had the card suspended or cancelled by that bank or specialized deposit-taking institution by reason of default in payment, and the bank or specialized deposit-taking institution discloses information related to the name and identity of the customer, the amount of indebtedness and the date of suspension or cancellation of indebtedness and date of the suspension or cancellation of the credit card or charge card to another bank or specialised deposit-taking institution that is issuing credit cards or charge cards in the country; (b) the customer is declared bankrupt or insolvent in Ghana or, in the case of a company, is being wound up; (c) the customer has died, testate or intestate, and the information is required by the appointed personal representative of the deceased or the testamentary executor solely in connection with the succession of the estate; (d) the express consent of the customer has been obtained; (e) civil proceedings have been instituted involving the bank or specialised deposit-taking institution and the customer or account of the customer; (f) the information is required by an officer in the employment of the same bank or specialised deposit-taking institution in the country or an auditor or legal representative of the bank or specialised deposit-taking institution who requires and is entitled to know the information in the course of professional duties; (g) the information is required by another bank or specialised deposit-taking institution for the purpose of assessing the credit-worthiness of a customer, if the information is being sought for commercial reasons and is if a general nature; (h) the bank or specialised deposit-taking institution has been served with a garnishee order attaching monies in the account of the customer; (i) a person referred to in subsection (1) is summoned to appear before a judge or a court of competent jurisdiction and the judge or the court orders the disclosure of the information; (j) where disclosure is required under an enactment; and (k) the bank or specialised deposit-taking institution is required to make a report or provide additional information on a suspicious transaction to the Financial Intelligence Centre established under the Anti-Money Laundering Act, 2008 (Act 749).” The author notes that the current Act 749 has been repealed by a new Anti-Money Laundering Act 2020 (Act 1044) but the provision in section 146(4) and the requirement thereunder is still applicable. These and many other provisions show the importance of keeping customer information from being compromised unjustifiably.

All the above shows the importance attached to protection of consumer privacy or privacy of data and a breach thereof have dire consequences for the service providers.

7. Complaint Resolution Mechanism (CRM) – This has to do with the avenue where

consumer issues or concerns are redressed to the satisfaction of the consumer or customer as the case may be. No matter how well intentioned the service provider or manufacturer may be, there is a possibility that there will be unmet expectation on the part of the consumer, grievances, disagreements etc., there must be an avenue for reporting and resolution of such grievances. If this avenue is not available, it has the potency of marring the relationship with the customer or consumer.

Consumer Protection and the Role of Regulators and the Media

Regulators such as The Ghana Standard Authority, the Food and Drugs Authority, Bank of Ghana, Securities and Exchange Commission etc also has a role to play in this regard. It is not for nothing that licenses are required in these industries as well as approvals before some products or services are released to the unsuspecting public. Usually, when advertisement is made on either food, drugs or any other, you hear ‘this product is approved by the Food and Drugs Authority’. This implies that the product has gone through some thorough checks and the Food and Drugs Authority is certain that the product poses no danger to the consumer. The author is aware of a recent trend, where adverts are made without any such approval, a trend which the author thinks puts the consumer at a greater risk or danger. Recently, there was a video circulating on a fake herbal mixture. It was a test by media orgnisation ‘the Fourth Estate’ to mix three popular soft drinks into a herbal mixture called MACOFA, (a combination of Malt, Coke and Fanta). This concoction was mixed and sent to some media houses for advertisement on their respective networks. None of these media houses did their background checks and confirmation with the Food and Drugs Authority and went ahead advertised in a way that is enticing and inviting to the general public. It is possible there are a lot of such drugs in the system being advertised by various media houses with its attendant health dangers and implication. The author suggests that, the Regulators and media stations alike must be alive to their roles in this regard if there is the need to protect the consumer, failing which consumer protection will be prejudiced.

It is also contrary to law for a manufacturer to deceive consumers. The Public Health Act, 2012 (Act 851), in section 103 provides in relation to ‘food’ that “A person who manufactures, labels, packages, sells or advertises a food in a manner that is false, misleading, deceptive or misbranded as regards its character, nature, value, additives, substance, quality, composition, merit or safety commits an offence.”

In relation to drugs, section 113 thereof provides that, “A person commits an offence if that person labels, packages, sells or advertises a drug, a herbal medical product, cosmetic, medical device or household chemical substance (a) in contravention of Regulations or Guideline made under this Part, or (b) in a manner that is false, misleading or deceptive or misbranded as regards its character, constitution, value, potency, quality, composition, merits or safety.” It seems to the author that in the example cited regarding the MACOFA herbal mixture, players in this scenario come within the confines of this law and the media houses that did the respective advertisement in the author’s view would have a question to answer.

The author suggests that the Regulators and media houses may have a duty of care towards the consumer and if that duty is breached and a consumer suffers as a result, an action may lie in negligence at the instance of the consumer unless prohibited by law from so doing.

Consumer Protection Policy
The author is not oblivious of the existence of a draft Consumer Protection Policy which has been developed after several consultation and yet to be made public. The first paragraph of the 38 paged Policy is instructive regarding this subject when it stated, “Consumers have become more and more exposed to all forms of threats. This is due to undesirable business practices and production of poor-quality goods and services. In addition, the advent of electronic commerce has completely changed the dynamics of business transactions which sometimes have adverse effect on the consumer. It is in the light that the Ghana Trade Policy proposed the development of a Consumer Protection Policy. Prior to the preparation of this policy, the consumer protection regime in Ghana was woefully inadequate. There were deficiencies in the legislative, regulatory and institutional frameworks.”

The author aware of the advocacy made by many persons for Consumer Protection in Ghana. This subject cannot be concluded without mention of Kofi Kapito who has championed the cause of consumer protection for some time to the extent that his name has become synonymous to Consumer Protection in Ghana and currently heading the Agency. In Ghana, there is a Consumer Protection Agency established with the objective of providing a forum for individuals, communities and businesses to present concerns and an opportunity for mediation and resolution consolidate issues to develop consensus.

The need for Specific Consumer Protection Legislation?

The author appreciates that some steps have been or are being taken towards consumer protection, in either policies or legislation. According to the Consumer Protection Policy, “The current Consumer Protection Policy regime consists of legislative and regulatory provisions scattered in several pieces of legislation….This inadequacy is attributable to several factors, the most significant of which is the absence of a comprehensive policy and law on consumer protection.” It seems to the author that if we take Consumer Protection serious as we do for other issues, steps should be taken to enact a Consumer Protection Law in Ghana, as one specific legislation that will provide for rights and obligations of consumers and service providers. Indeed, Ghana has a legislation for Data Protection, there is a law for Depositors Protection and it would not be far from right if a demand is made for legislation for Consumer Protection in Ghana. We cannot protect data by legislation, deposit by legislation and leave the consumer without any such legislative protection.

Conclusion
From the above discussion, it goes without saying that consumer protection is important and must be a concern for all, the state and citizens alike. It is not enough to rely on several provisions in other legislation as a basis for consumer protection, when there can be a specific legislation. There is the need to move beyond the Policy to Legislation. The advocacy must continue unabated until a legislation is achieved.

[4] Section 57(2) Act 1052

[5] Section 57(4) Act 1052

[6] Section 57(5) Act 1052

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