Let us not Allow our Beloved President’s, Resetting Idea to Retrograde Ghana

‘Throughout History, it has been the inaction of those who could have acted; the indifference, of those who should have known better; the silence of the voice of justice and good people when it mattered most; that has made it possible for evil to triumph’ This a quote from Emperor Haile Selassie.

‘The World suffers a lot, not because of the Violence of bad People. But because of the Silence of Good People.’ This is a quote from Napoleon Bonaparte. Implying the greatest cause of suffering in the World was/is the inaction of those who could stand up to evil, rather than the direct actions of malicious individuals essentially placing blame on those who did not speak out against injustice even when they have the power including the power of knowledge to speak out, since knowledge is power.

The above quotes are clarion calls for Ghanaians to stop the acts of being Spectators or the usual famah Nyame to wit the give it to God syndrome and rather rise to the occasion to ensure due process is followed by a new President, currently his excellency JD Mahama, works constitutionally and legally by adhering to democratic rule or the rule of the law (especially the provision of the 1992 Constitution and Acts of Parliament on Labour/Company Law for good Corporate Governance) at all times.

So, it was very unfortunate that our dear President within his first 120 days in office has caused and is causing both constitutional breaches and a legal blunder yet our intelligentsia community especially our Labour experts, Political Analysts and Constitutional analysts who in the past ranted on radio and TV Stations, have suddenly kept mute thus portraying a sudden conspiracy of silence about the blunders.

Otherwise they have demonstrated and are demonstrating gross ignorance of the provisions of the 1992 Constitution or lacked intestinal fortitude to see to the adherence of rule of the law in Democratic Dispensation by speaking out against Unconstitutional acts. legal/labour breaches to ensure a better Ghana Agenda otherwise they lacked intestinal fortitude to speak out for a better Ghana or maybe they want to be nice in order to court or gain favour from the President.

So firstly, it is very disgusting that none of the multitude members of the Intelligentsia Community, especially the usual political and constitutional analysts is able to speak out against the usurping of the powers of Parliament by our dear President with the establishment of a Constitutional Review Committee to see to the wholesale Amendment of the 1992 Constitution.

Since, the President of Ghana has no power or nor has been granted power to initiate an action for the Amendment of the Constitution except that he or she shall assent to a bill for the amendment of a provision of the Constitution when it is duly enacted by Parliament.

The President must be told that the Procedure for the amendment of the Constitution is far different from the procedure for enactment of ordinary legislation, in which the draft bill is initiated by or from the Executive or the President.

The President should have been told by now, that by swearing the oath of Allegiance to the Constitution, he should not have dreamt of initiating an action for the amendment of the 1992 Constitution. This is so, since he is required to preserve, uphold, protect, defend and support the Constitution at all times without hesitation.

The Constitution at chapter 25 granted exclusive power to initiate action to amend any of its provision to the Parliament of Ghana, which must follow the laid down procedures for either an entrenched provision or non-entrenched provision and at the end submit the bill for the amendment to the President for his or her signature without a comment or hesitation.

The framers of the Constitution also granted exclusive Residual Powers at Article 298 of the 1992 Constitution to Parliament to provide any matter arising out of this Constitution or otherwise there is no provision, express or by necessary implication of this Constitution …….. This tells that the President has no power to initiate action for the amendment of the Constitution.

President Mahama must be told that due to the Political history of Ghana especially on how our First President of Ghana, namely Dr Nkrumah, who based on his whims and caprices could change or amend the provisions of the 1960 Constitution, made the framers of the 1992 Constitution to dedicate Chapter 25 of the 1992 Constitution for the Amendment of the Constitution.

So the Framers of the Constitution made the details therein in a very clear English Language, that Parliament of Ghana is the only Authority to initiate action on the amendment of a provision of the 1992 Constitution and act which requires a submission to the Council of State for its advice. The President by the Constitution is only for the conclusion of the enactment by a mandatory assenting by appending his or her signature on the bill for amendment of the Provision.

So let me say again that by the 1992 Constitution, the President of Ghana, who is also the Commander-in-chief of the Armed Forces of Ghana, together with his subordinates as Military Officers or Military Personnel so appointed or commissioned by the President as per Article 212 of the 1992 Constitution are required to demo loyalty to the Constitution through the swearing of an oath of allegiance to preserve, to uphold, to defend and to support the Constitution at all times.

Thus any act to the contrary to the provisions of the Constitution is not only Unconstitutional but an act of disloyalty against the Constitution. So we need to protect our dear President by advising and or helping him to act with caution.

So our beloved President should cancel the Constitutional Review Committee and let the Leadership of Parliament or the Minister for Parliamentary Affairs or the Majority Leader or the Speaker of Parliament upon receipt of memo from a member of the House or CSOs to take the mantle of constituting a Constituent Assembly or Committee for the collations/collections of the inputs for amendment of the provisions of Constitution. Parliament, as the House of Representatives of the electorates would then consider the suggestions and follow the laid down procedure.

Secondly, the new President through the Chief of Staff must be halted from causing serious problems in the labour front, since Article 1 (1) of the 1992 Constitution on Supremacy of the Constitutions stipulates that the Sovereignty of Ghana resides in the People of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within limits laid down in the Constitution.

The provision of this Article, also implies that among others there must be fairness in the association between the government as employer and the citizens as an employee, so, the national labour law and Company law requires that the termination of the employment of any of the citizen as a worker and government as an employer must be done in a fair manner by either party following the due process or laid down procedure as per the Constitution, labour law, Company law for Corporate governance.

So among others as required in the service agreement, either party (employer and employee) may terminate an employment by going along with the requisite notice time otherwise one month salary payment in lieu of notice as well as the payment of the duly earned and deserved compensation as spelt out in contract or service agreement or Collective Bargain Agreement (CBA) and the termination should be done without much fanfare or media attention.

It is therefore very sad that Constitutional experts and labour experts have kept mute despite clear breaches of the Article 191Constitution and Company law or violation of corporate governance and labour law as caused by the Presidency by wrongful or unlawful termination of employment by not adhering to the employment contract/Collective Bargain Agreement.

It is mindboggling that our intelligentsia community are mute or weak to speak out notwithstanding the existence of unfair termination of employment by not adhering to the Labour Act which among others stipulate an issue of requisite notice or pay in lieu of notice and payment of some entitlements by either party.

So, Article 190 and Article 191 of the 1992 Constitution and relevant laws on Employment namely the Company law of Ghana, namely Company Act 1963 Act (179), the Labour Act 2003 (Act 651) otherwise the Collective Bargain Agreement or the Terms and Conditions of Employment governs matters on employment including the Tenure of Employment of Public Officers as well as Corporate Officers. So as part of democratic rule, the powers of Government otherwise governance must be exercised in the manner within the limits of the Constitution and Laws of Ghana.

So, it is very shocking that with the exception of Dr Samuel Manteaw and some few Ghanaians, most of members of the Intelligentsia Community did not come to the aid of Ms Hollister Duah Yentumi, the Ex-Managing Director of SIC Insurance PLC, a limited liability Company which is listed in the Ghana’s Stock Market. She was rather roasted by some of her nationals for fighting for a good cause as required in the 1992 Constitution, in the Labour Industry and the Corporate Industry.

Hollister’s (the Ex-MD of SIC Insurance PLC) actions in dealing with the termination of her employment was a very good one to ensure the adherence to the rule of the law, protection of human rights and very good corporate governance, since her problem was not a dismissal one due to misconduct or gross negligence nor incompetence but mere termination hence due process is required.

Hence the termination of the employment of Hollister was unconstitutionally, unlawfully and wrongfully executed by the Office of the President, since it was not based on fairness nor by mutual termination. So, the termination of Hollister’s employment has raised a constitutional question, a legal/labour question and Corporate Governance question. Coincidentally, these questions were answered by both the Supreme Court and High Court of Ghana 2017 and since 2003. In 2003 due to the vague state of affairs, the labour law Act 651 of 2003 was enacted and gave clarity on termination, redundancy and severance award, and that all redundancies connotes termination but all terminations do not connote redundancy.

The tenure of office of Corporate Officers and the Governing Board is secured and governed by the 1992 Constitution of Ghana, Company law 1963 (Act 179) and Labour Act 2003 (Act 651) or International Labour Law or the Collective Bargain Agreement or letter of contract.

A case study was the wrongful termination of employment by the Administration of then President Nana Addo in 2017. So, on 04 January 2017, seasoned Lawyer Mr Godwin Eduszi Tamakloe Esq on behalf of his client Theo Donkor, as the Plaintiff invoked the jurisdiction of the Interpretation powers of the Supreme Court to deal with the termination of the employment of his client namely Lawyer Donkor.

The Supreme Court of Ghana, with a panel of 7 Justices presided by Justice Sophia Akuffo, by unanimous decision which was read by Justice Professor Nii Ashie Kotey ruled the action of the new President as unconstitutional, unlawful and wrongful.

According to the Supreme Court of Ghana per Article 190 clause 1 (b) of the 1992 Constitution, the employment of Corporate Officers of both public corporations (like National Petroleum Authority, National Pensions Regulatory Authority, National Communication Authority, Forestry Commission, Public Procurement Authority, EPA, Security and Exchange Commission which were noncommercial bodies were part of the Public Service of Ghana were/are protected by the Constitution.

The Court explained that the security of appointment of Corporate Officers is governed by Article 191 of the 1992 Constitution, hence their removal must be done in accordance with their terms and conditions of the contract of engagement or it must be justified as stipulated in Article 191 of the 1992 Constitution. Which says that a member of the public service shall not be dismissed or removed from office without just cause.

By this ruling by the Supreme Court, the Court repealed or declared null and void the section of the Presidential (Transition) Act 2012 (Act 845) which terminated the appointments of the CEOs, or Director Generals or MDs of Public Corporations, Statutory Boards, Corporate bodies and, authorities upon the assumptions of office of a new President.

The President must take note, that aside the IGP, the CDS, and Service Commanders (Security Tactical Commanders), who for security and technical reasons as the Commander-in-chief of the Armed Forces (Supremo Security tactical commander), he can terminate the appointment at his pleasure, he has no power to revoke the employment of worker without going through the due process.

The Supreme Court extended its ruling to cover the governing board and Corporate Officers of Limited Liability Companies like GCB, NIB, ADB, SIC Insurance PLC etc and made it very clear that both the governing board and Corporate Officers cannot be removed on the assumption of office of a new President since the are under the Company Act 1963 (Act179) ,

According to Supreme Court, their removal is by articles of incorporation of the Company and the Companies Act 1963 (Act179) as such the appointment of Corporate Officers can be terminated by laid down procedure by applying the relevant law.

It must also be noted that SIC was converted into a Company limited by Shares and a public traded Company on the Ghana Stock Market, hence a public limited liability Company. As a listed Company, SIC is governed by the Companies Act and its activities are subject to the oversight by Shareholders with the Government of Ghana as the Majority Share Holder.

The governing Board of SIC Insurance PLC , made of Directors are appointed by the Share Holders and but the Corporate Officers or Management Team are appointed by the Governing Boards to oversee the day to day business functions based on their background and expertise.

So, the termination of the employment of the CEO of a listed Company in the Stock Market may give a wrong signal to investors in the Stock or Capital Market and may cause the drop in the share price of the listed Company. So the President of Ghana should bear this in mind not to retrograde the economy of Ghana.

So, I expected believers of Democratic rule, the TUC, Labour expects, and Seasoned Economists to rise to the occasion to support Hollister for fighting a good cause in a Democratic Dispensation, labour Industry, Corporate Industry and the Stock Market Industry.

This action by Hollister or matters on the labour front reminds me of four issues of experiences during my tour of duty as a Military Officer with the Ghana Army and these worth sharing or documenting on my column at this point that would help to prepare my personal dossier in future.

The first was, when I was made a member (say something like a justice) of a three member panel of a Military Court Marshal to dispose a disciplinary case of a fellow Army Officer. So I did research on the definition of and related matters on Honorable Discharge, Dishonorable Discharge, voluntary and involuntary Termination of Employment, Summarily Dismissal, and Dismissal etc.

so in my verdict, I bamboozled my fellow panel members and Seasoned lawyer Philip Addison, the accused Officer’s or Defender’s lawyer, when I said that considering the Charges, the account of the accused Officers, his length of service in the Military without a blemished record before the offences he has been charged against, his marital status (a married officer) with children etc so, I declined to ask for dismissal from the Ghana Armed Forces.

Among others, I indicated that Dismissal or Dishonorable Discharge would cause a loss of duly deserved compensations and not allowed to use his rank in civilian life to get a good civil job to support his close family and thus give a good image of the Military, so I opted for Honourable Discharge something like involuntary termination. The Officer was released as such and luckily he became a Marshal of Ghana’s Parliament.

The second experience was when I served with 2BN Takoradi and I was made to sit for the Commanding Officer of the 2Bn of Infantry, Takoradi, as the Officer Commanding of the Rear Details. So during my tour of duty as such, intelligence gathered indicated that workers of defunct or outgoing Ghana Australian Gold (GAG) who were to be absorbed by a new Mining Company as incoming Goldfields Tarkwa, intended to burn some of the assets and take some the expatriates into hostage of Goldfields, Tarkwa.

Based on this intelligence, the Western Regional Security Council arranged a helicopter that lifted my troops to Tarkwa to secure the assets and the Management of Goldfields, I went there with the troops and met some of the leaders of the workers to cooperate with the troops.

The workers told me that the impasse between them and Goldfields Tarkwa was about the payment of severance award, which they claimed was enshrined under their Collective Bargaining Agreement (CBA) or their Terms and Condition of Employment. They gave me a copy of the CBA which indicated Termination and Redundancy without clarity/definition, explanation, interpretation of these two terms. According to the management of Goldfields, no termination of employment since all the workers would be absorbed by the Goldfields.

I disagreed with them and a made a submission to the REGSEC that as part of peace building effort, the two parties to resolve the impasse by agreeing on a payment of severance award since there was a complete change of ownership and Management of the Tarkwa Mine from a defunct GAG from Australian to Goldfields Ghana Tarkwa from South Africa hence it demo a clear sever of relationship or a termination or conclusion of relationship with GAG so they workers deserved handshake from GAG otherwise Goldfields Tarkwa.

The Chairman of the Western Regional Security Council bought my recommendation and the REGSEC visited the Tarkwa Mine and drew the attention of Goldfields Tarkwa to the issue on redundancy and termination and they had to pay the workers to buy their peace or peaceful or enabling atmosphere.

Thirdly, during the reign of NDC2, under the Presidency of His Excellency President JJ Rawlings, erupted was a legal impasse of an International dimension or measure which travelled to the International Court of Arbitration that saw Barnex Ghana Ltd jointly with Golden Star Resources Ghana (GSRGH) as the Plaintiff.

The Defence side was the Government of Ghana jointly with the former workers of Prestea Gold Ltd (PGL), which was then a subsidiary of defunct State Gold Mine Corporation. PGL was sold to Barnex, which also sold it to Golden Star Bogoso thus made the two Multinational Mining Companies, as the Plaintiff against the Government for revoking of the Mining Lease without due to process. .

The workers were part of the Defence side because they invested their severance award into illegal mining activities at the Prestea Mine of PGL as stated which was owned by Barnex which sold PGL to GSRGH, hence GSRGH as the new owner.

The former workers of SGMC established Prestea Gold Resources (PGR) with the support of their MP and the Government of the day without the payment of compensation to Barnex.

The International Arbitration Court awarded over 10 Million Dollars against the Government of Ghana which Ghana could not pay before a new Administration (Government) or New President of Ghana under NPP1 in the reign of President JA Kofour took over on 07 January 2001, the REGSEC with the exploits of 2Bn under my leadership, helped getting the narrative to be changed, through personal engineering by getting some of the people at the side of the government of the day, suddenly the Government of the day metamorphosed from Defence to the side of the Plaintiff and issued a new mining lease to GSRGH, which bailed out the Government of Ghana by agreeing to pay the judgment debt to Barnex. .

So due to my support to GSRGH, the MD of GSRGH namely Mr Richard Gray and Corporate Affairs Manager, Colonel Alhaji Amadu Disu (rtd) saw my potential to help GSRGH to operate successfully in Prestea. Since I was seen by Col Disu (Rtd) as a very serviceable young military officer, with good negotiation skills and critical thinking mindset, a pioneer graduate of Africa Crisis Initiative (ACRI) a concept by the Regime of President Bill Clinton of USA, as part of Africa’s Standing Force for crisis management in Africa by a combination of Peacekeeping, Peacemaking and Peace building effort. So the Colonel caused my resignation from the Ghana Army to join GSRGH and work at their Security Department.

Truly, I delivered Prestea and its enclave as safe mining for the successful mining of area for GRSGH that saw the purchase of Satellite Mine which metamorphosed into Golden Star Wassa Mine and St Jude Concession at Benso near the Benso Oil Palm Plantation. .

This success was gained with the support of one Mr Albert Soboh and Col Disu (Rtd) both with GSSRGH and a Commanding Officer of 2BN by loaning a spoilt Steryr truck or Troop carrier which was repaired by the Bogoso Mine and the relocation of soldiers from Bogoso to Prestea for covert operations. As well as my organization of Galamasey Operators into Prestea Mining Group as the first Community Mining in Ghana which I easily control whenever Financial Analysts visited the Mine . Based on the success of my experiment, we planned to get Bogoso Mine and the Obuasi Mine to relocate their risky Galamasey Operators to far away area around Ayanfuri, this was before the Perseus Mining Company took over the affected Concession it was then owned by Obuasi Mine.

Fourthly, at Bogoso Mine as the Security Superintendent and during an impasse due the failure for the payment of handshake exgratia or bonus, I negotiated with the Workers for peaceful resolution of the impasse, which led to the workers to take the Management of the Bogoso Mine into hostage for 20hours by locking the MD and other key Staff at the Mine Site by refusing to allow them to leave the Site to their homes or houses. Aside coffee, no meals were allowed by the workers to be served to the MD and others.

The MD of the Company was not ready to pay the handshake or a form of exgratia as demanded by the Staff, so I had to invite one Mr George Ayema, then a BNI Officer and now the Head of Security of AngloGold Ashanti Tarkwa and briefed him on how the impasse could be resolved. He passed the intelligence to REGSEC through his Regional Boss and based on that the then Deputy Regional Minister Hon Sophia Homiah, came to the Mine and defused the tension using my input which I gave to the BNI Officer.