Were the Actions of the Chief Justice and GLC Illegal and Unconstitutional?

By Kofi Ata, Cambridge, UK 1 November 2019
The case for and the debate on the legal training of lawyers in Ghana got hotter this week with media reports that the General Legal Council (GLC) on the orders of the Chief Justice, JSC Sofia Akufo summoned the Gneral Manager of ABC Television to appear before one of its committees over an interview with the former Director of the Ghana Law School, Mr Kwaku Ansah-Asare regarding the recent Law School examination results. Mr Ansah-Asare was alleged to have said that, “the GLC is abusing the trust the nation has reposed in them. It was time they are told in plain language that they should stop the nonsense because what is going on is nonsensical. I can’t understand. As a former director of the law school, I have got to say it nakedly as it is. What they are doing is unbecoming and it is time they stopped." On the annual mass failures of students, Mr Ansah-Asre was reported to have accused the GLC of “perpetrating fraud and deliberately limiting the number of students to be admitted into the law school." My understanding is that both Mr Ansah-Asare and ABC Television General Manager appeared before the GLC committee. It is this development on the ongoing legal training of lawyers in Ghana that is the subject of this article.

The object is to look at the legality and constitutionality or otherwise of the actions of the Chief Justice and the GLC, relying on the 1992 Constitution as a reference point in terms of freedom of speech and press freedom. I will attempt to discuss the development by briefly looking at the roles of the the Chief Justice and the GLC and draw conclusions.

If the media reports are accurate, then any observer of constituional demcarcy and the rule of law should be seriously troubled by the actions of the Chief Justice and the GLC for a number of reasons that are discussed below.

Article 21 (1) (a) of the 1992 Constitution states “all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media”. This is part of fundamental human rights and freedoms guaranteed under the constitution. Simply put, Mr Ansah-Asare and the television Executive were exercising these important fundamental human rights and freedoms under the constitution.

So, under what authority did the Chief Justice and GLC order a television Executive to provide a copy of interview with Mr Ansah-Asare? Moreover, what crime, if any, did Mr Ansah-Asare commit to warrant an order to appear before a GLC committee? Is accusing the GLC of “perpetrating fraud and deliberately limiting the number of students to be admitted into the law school” or claiming “the GLC is abusing the trust the nation has reposed in them. It was time they are told in plain language that they should stop the nonsense because what is going on is nonsensical. I can’t understand. As a former director of the law school, I have got to say it nakedly as it is. What they are doing is unbecoming and it is time they stopped", a crime in Ghana? If so under what law?

The the Chie Justice and GLC may not like what Mr Ansah-Asare said or strongly disagree with him but that is not a good reason to order him to appear before a committee. Ghana is not dictatorship for the Chief Justice and the GLC to take the law into their own hands, abuse citizens for legitimately expressing their views on an issue of national importance. After all, is it not true that students who take the examination to enter the Law School fail massively? Is it also not a truism that the Chief Justice has said that she would not allow mass production of lawyers as long as she is Chief Justice?

Who does the Chief Justice think she is, to arrogate to herself powers the constitution has not given her as an individual or as Chief Justice? She should remmebr that she is not a tin god but a pubic servant whose powers emanate from the people through the constitution.

The Chief Justice performs and administrative function of managing the judiciary in addition to her other duties as a judge. She has no powers to make judicial orders that are enforcible when understaing her administrative duties, unless specifically given to her by the constitution. The Chief Justice is clothed with judicial powers only when she sits as a justice of the Supreme Court either as a lone justice or as part of a panel. For this reason, the Chief Justice on her own cannot issue any enforcible judicial orders to citicizens. Therfore, her order to the GLC to order Mr Ansah-Asare and the ABC Television General Manager to appear before a committee of GLC was illlegal, unconstitutional and null and void. If the Chief Justice believed that Mr Ansah-Asare and the television Eexcutive had done anything wrong or committed an offence punishable by law, the appropriate action for her as a justice of the Supreme Court was to go to court and not take the law into her own hands. What the Chief Justice did was abuse of her powers to achieve her misguided aim of not allowing mass production of lawyers in Ghana.

The GLC on the other hand is a regulatory body for the legal profession that by itself cannot make judicial orders to citizens without due process. If in the view of the GLC, both Mr Ansah-Asare and the television Executive were in breach of their regulatory powers, then the GLC should have gone to the court. Assuming the actions of the two citizens were professional misconduct and both were lawyers of good standing, then the GLC could have invited them but not order them to appear before a GLC Disciplinary Committee. In that case, the charges against them must be clearly stated to enable them prepare to defend themselves before he committee. Only a court of competent jurisdiction can order citizens to appear before another body for exercising their fundmanetal human rights and freedoms enshrined in the constitution. For this reason, GLC also abused it position as a regulator by usurping judicial powers of a court.

Ghana is under constitutional democracy and the rule of law. However, of late the abuse of citizens by public bodies and people in positions of authority who ought to know better is alarming. The Chief Justice of the Supreme Court of Ghana has a duty as chief defender and protector of the 1992 Constitution, including the fundamental human rights and freedoms. This duty is enshrined in Article 35 subsections 1 to 5. Yet, and sadly, the Chief Justice is the one who violated the constitutional rights and freedoms of two citizens.

In any democratic society, the Chief Justice would have resigned or be sacked for abusing her position and acting illegally and unconstitutionally. But in Ghana, no one resigns or is sacked and this Chief Justice would not be the first or the last. It is disconcerting that the Ghana Bar Association that should also defend the and protect the constitution and citizen’s rights and freedoms has kept quiet over the constitutional breach by the Chief Justice and the GLC.

But why did Mr Ansah-Asare and the television Executive honour the Chief Justice and GLC order knowing very well that they were exercising their Article 21 (1)(a) fundamental rights and freedoms guaranteed by the constitution? Why did they not challenge the order in court as illegal, uncnstitutional and null and void? It is equally worrying if citizens including knowledgeable personalities and journalists are not prepared to challenge wrong doing by powerful individuals who abuse their powers. For example, the deputy editor of Modernghana.com was recently arrested and ordered by national security officers to delete published material without due process. If journalists are not willing to test the law, how do they expect to educate ordinary citizens on the laws of the land?

Often, Ghanaians say that corruption is the main cause of underdevelopment and poverty in the country. I differ with them on this. On the contrary, it is lawlessness and indiscipline which is the root cause of underdevelopment and poverty in Ghana. Corruption is only a symptom of underdevelopment and poverty in the country and not even the cause. If the Chief justice and GLC could abuse the fundamental human rights and freedoms of citizens without any sanction, how do you expect development and eradication of poverty? All countries that have developed did so under discipline and respect for law and order. Until Ghana follows this approach to development, no amount of oil, gold, natural gas, cocoa, diamond, manganese, timber, etc are exported, development will elude Ghana if there is no law and order in the country. Rule of law must be respected by all and sundry. Instead of the nation spending millions of money fighting corruption, time and effort should be devoted to enforcing laws, rules and regulations without fear or favour. That will bring in the needed revenue for development that would reduce poverty.

In conclusion, the Chief Justice and the GLC have no autority or powers to order citizens and journalists to appear before a GLC committee simply because they exercised their fundamental human rights and freedoms gauranteed under Article 21 (1)(a) of the 1992 Constitution. The Chief Justice and GLA breached the 1992 Constitution and violated the rights of the two citizens and should she resign as her position has become untenable. The chief protector and defender of the constitution has become its violator and abuser and a justice who does not follow the rule of law. That is lawless Ghana for you.

Kofi Ata, Cambridge, UK