Full text: Attorney General Godfred Dame's speech at Ghana Bar Association Conference in Cape Coast
Source: myjoyonline

His Excellency the President of the Republic, Nana Addo Dankwa Akufo-Addo, Her Ladyship the Chief Justice, Mrs. Gertrude Araba Esaaba Sackey Torkornoo, Justices of the Supreme Court Justices of other superior courts of judicature Retired justices of the Supreme Court Honourable ministers of state, Central regional minister, Justina Marigold Assan, The President of the Ghana Bar Association, Yaw Acheampong Boafo, Deputy Attorney General, Mr Alfred Tuah-Yeboah, The Omanhene of Ogua Traditional Area, Osabarima Kwesi Atta II Members of the Bar Council, The president of the Central Regional Bar, Members of the Bar, distinguished ladies and gentlemen, friends of the media It is always a delight to be in the company of colleagues at the Bar at the annual Bar Conference. The Bar Conference presents that rare opportunity to meet fellow lawyers from different walks of life, whether we practise in commerce or crime, whether we work in public service or private practice, and from Bolgatanga to Takoradi. It reinforces my conviction that, fundamentally, we are one Bar and a strong one at that. Since the last Bar Conference in Ho, we have had a new Chief Justice in the person of Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo - the third woman to occupy the office and 15 th in the history of Ghana. I have no doubt that the repertoire of qualities, skills and experience she possesses will place her in a position to continue with the process of modernising and transforming Ghana’s Judiciary. Congratulations, My Lady. The Bar of which I am the official Leader is in full support of your tenure. I pledge the fullest cooperation of the Office of the Attorney-General and Ministry of Justice for you as well. May God be your guide as you superintend justice delivery in our great Republic. Cape Coast represents many of the good things in law practice. The first capital of the Gold Coast and the hometown of the first indigenous lawyer our land has birthed, John Mensah Sarbah, it is apt to say that Cape Coast is indeed the cradle of the law in Ghana. The first Supreme Court building is located a few miles away from this venue. At this point, may I say that I am aware of plans to construct a new High Court complex opposite Adisadel College, as part of this government’s agenda to deliver a set of modern and fit-for-purpose infrastructure for the Judiciary throughout the country. Whilst not opposed to the idea of construction of a new High Court Complex for the people of Cape Coast, I am of the view that we should also renovate and preserve the significance of that beautiful edifice which once housed our Supreme Court as a historical monument for Ghana’s Judiciary. Most occupants of the highest echelons of power in our legal profession – the offices of the Chief Justice and the Attorney-General had their secondary education in Cape Coast. Many a lawyer obtained some nurturing from a Cape Coast high school. I hope that lawyers gathered here will in the course of the week find time to undertake some outreach activity at your respective institutions. Personally, Cape Coast holds good sentiments for me as well. I did my primary education in Cape Coast, starting from class one at Albert Sam Memorial Preparatory School, and continuing up to the secondary level at Adisadel College, where I was part of the last batch of both the Ordinary and Advanced Level candidates in 1994 and 1996 respectively. And in talking about Cape Coast’s contribution to the law, it is fitting to recall that the flame of Adisadel burns bright in the field of law. I understand the Wesley Girls people fondly say, quite rightly, that they have produced the first three lady Chief Justices. But the record shows that before Chief Justice Georgina Wood, three of the immediate last four Chief Justices - Philip Edward Archer, Edward Kwame Wiredu and George Kingsley Acquah were all Adisadel products. So it is correct to say that the trail was blazed quite some time ago. Mr. President, I was struck by the importance of the choice of theme by the Bar for this year’s conference“ Ensuring high standards and integrity in public life – the role of the legal profession ”. It cannot be overstated that the legal profession indeed has a huge role to play in the setting and maintenance of high standards and integrity in public life. The law, which members of this profession practise, consists of a system of rules by which a particular country or community regulates the actions of its members and which it may enforce by penalties. The Bar has, of course, always had close links with public life. The history of the land on which we live has seen a very intimate dependence on the law. The acquisition of the Gold Coast by the British and the manner in which the British chose to regulate their relationship with the indigenous people, depended on law. After independence, law continued to shape the policies and visions of successive governments, dreams and aspirations of the people. Every new administration has been ushered in by law. Even the military regimes that abrogate the Constitution have been quick to put in place various military decrees to legitimize their reigns as well as to formally abrogate the old constitutions. The political architecture of the current Republic of Ghana is a creation of the law. Ghana is built on a legal instrument, the Constitution, approved by a national referendum in April, 1992. The election of the President every 4 years is always validated by the publication of a law, a Constitutional Instrument titled the “ Declaration of President-Elect Instrument ”. In driving home the pre-eminence of the law in the affairs of State, I cannot help but quote once again the immortal words of an eminent Ghanaian jurist and a former Chief Justice, Justice Azu Crabbe at the time of the celebration of the centenary of the establishment of the Supreme Court in 1976: “ If our legal history has been eventful in this past century, we can also say that we have been lucky in the people of our nation who have been alive, in every generation, to match the grandeur of the events of their time. We have, in these years past, never needed a hero in the law to speak up for our people, - a Casely-Hayford to warn the imperial power to keep our lands inviolate; a Mensah Sarbah to plead the people’s cause in the highest councils of Empire; a Coussey to guide in the writing of our first constitution towards independence, in our own lifetime, a Danquah to keep us reminded of the need for legal self-discipline in the tumultuous years immediately after independence, and a Korsah to hold, first among our people, the scales of justice evenly between the Government, the Legislature and the people”. Throughout much of the history of post-independence Ghana, there has been a shared culture between the Bar and the higher reaches of government and the civil service. There has never been a gulf between the worlds of law and politics. A very large number of practising barristers have been members of the House of Parliament. The Speakers of Parliament Ghana has had thus far, have been lawyers. The Fourth Republic has seen three of its five Presidents so far being lawyers. Unfortunately, it looks like the next President will not be a lawyer. However, it is becoming increasingly quite clear that, even though the next President will be an economist, being the son of a lawyer, he will hold fast to the values the legal profession cherishes. Lawyers role in promotion of integrity in Ghana If lawyers have played this prominent role in the building and development of our country, then their role in the maintenance of standards and the promotion of integrity in public life cannot be taken for granted. The significance of integrity is classically summed up in the famous words of Former US Senator, Alan K. Simpson “ If you have integrity, nothing else matters. If you do not have integrity, nothing else matters ”. In these words, the importance and indispensability of integrity in every situation we find ourselves in as human beings, including our public life, is brought to the fore. As lawyers, the rules of our profession which bind us up in the discharge of our five-fold duty to the client, the Court, the opponent, to the lawyer’s own self, and ultimately to the State, as stated by Lord Macmillan, a former Advocate-General of Scotland and former Member of the House of Lords, are founded on integrity and place us in a position to ensure the maintenance of high standards in public life. If we properly conceive of the role of lawyers as not mere “ economic actors ”, to borrow the words of Sir David Clementi, we will understand that we are professionals whose functions lie at the heart of our justice system. For that matter, the public interest must be the guiding factor in all we do. In my view, the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L I. 2423) is carefully designed to serve as the signpost for high standards and integrity in public service for every lawyer. Rule 1 of L. I. 2423 sets out the lawyer’s duty to discharge his responsibilities towards the client, the court, the public and another lawyer honourably and with integrity. In the same Rule, we find the lawyer’s responsibility, in view of the important role of the legal profession in a free democratic society, to recognise the diversity of the Ghanaian community, to protect the dignity of individuals and to respect human rights laws in force in the country. Rule 5 of L. I. 2423 teaches us that in a representation by a lawyer, that lawyer is “ a representative of a client, an officer of the legal system and a public citizen with special responsibility for the delivery of quality justice ”. Quite importantly, and I have often spoken about this, by dint of Rule 12(1), a lawyer is prohibited in the course of his professional practice, from sending written correspondence or communicating orally with another lawyer in a manner that is abusive, offensive or inconsistent with the proper conduct of a professional communication from a lawyer. Rule 14(2) further prohibits a lawyer from making a communication that is false or misleading if that communication amounts to a material misrepresentation of a fact or law. This really applies to lawyers who are constant users of or commentators on social media and the traditional media. It is abundantly clear from these rules that the age-old requirements of the profession, in so far as ethics is concerned, apply to lawyers on social media. Indeed, technology did not eradicate ethics. Mr. President, Rule 34 dictates that every lawyer shall make reasonable efforts to expedite litigation. As you can imagine, this is of interest to me. The considerably slow pace of justice delivery in Ghana hampers productivity and progress in many spheres of the nation’s life. In accordance with Rule 34, it is the duty of every lawyer to expedite litigation. One area of justice delivery which requires urgent injection of expedition and efficiency is criminal justice. I have recently presented to Cabinet a Criminal Procedure (Amendment) Bill which introduces a substantial reform of the criminal procedure laws of this country, with the ultimate objective of enhancing the speed of adjudication of criminal cases. The new measures proposed include scrapping trials on indictment except where the offence is punishable by death or life imprisonment as enjoined under the Constitution or other substantive law, provision for examination of witnesses by video conferencing, provision for trials to proceed where an accused person is not personally present in court, day-to-day trial of all criminal cases except where same is impracticable, restriction on interlocutory appeals to only after a determination by the trial court of a submission of no case, reform of the jury system to reduce the list of exemptions from jury service, the composition of the jury (by addition of alternate jurors), adoption of proceedings in criminal cases and many other matters. The Bill underwent extensive stakeholder consultations prior to its presentation to Cabinet and I note with satisfaction, that, the Judicial Council and the Ghana Bar Association have approved of these far-reaching reforms of criminal procedure in Ghana. I am hopeful Cabinet will deliberate on same rapidly in order for it to be laid in Parliament when it resumes sittings in October. In dealing with efficiency and speed of justice delivery, I note that Rule 36(e) restricts a lawyer from making a frivolous discovery request. This is for the lawyers who have the tendency to bother the prosecutors in my office with somewhat unnecessary and irrelevant requests for the discovery of documents even when they are in possession of the very documents they request. The defence of the legal profession against destruction by outsiders Respectfully, at the heart of the legal profession are three commitments: to independence, to excellence and to advocacy.These three tenets, combined with the Bar’s high degree of tenacity, explain why the Bar has survived in Ghana since 1876 and why in my view, it will continue to survive and thrive. But we should not take these things for granted. The essential elements of the profession must be guarded against elements who seek to destroy same. Lawyers must fearlessly speak against tendencies which threaten the integrity of our profession. Fearlessness is an age-old attribute of the good advocate. Rule 52 of L. I. 2423 specifically restrains lawyers from making statements which they know to be false or with reckless disregard for their falsity concerning the integrity of a judge, an adjudicative officer or a public legal officer. Rule 61(b)(iii) proceeds to further bar lawyers from engaging in conduct which diminishes confidence in the administration of justice. We cannot turn a blind eye to the reality that it has become customary, and for some people, an annual affair, to launch unwarranted attacks on the independence of the Judiciary. If the source of the recent attacks on the independence of the Judiciary is of concern, of even greater worry is the class of people who provide audience for such unwarranted comments to be made. The audience consisted of lawyers. It is worrying because, as I have stated before, lawyers ought to be the loudest and strongest defenders of the independence, integrity and importance of the Judiciary rather than serving as tools for its destruction. By the silence, they have become abettors in the propagation of hate against the Judiciary. For one to express the desire to appoint mainly members of one’s political party to the Judiciary if given the mandate to govern the nation again, clearly indicates an unfamiliarity with the process of appointment of judges. Whilst acknowledging the constitutional duty of the President to appoint all judges in the country, it is imperative to note that the President does not appoint judges to any court in a vacuum, or, in exercise of an absolute power in that regard. Each appointment unto the Judiciary is preceded first, by an indication of a vacancy by the Judicial Council. Without a vacancy, the President cannot appoint. We cannot, in this regard, rule out the coincidence of situations. If a vacancy arises, it falls for whichever President is in office to formally fill same by appointing after the exhaustion of all constitutionally mandated procedures. Thus, the notion that a President can just appoint any number of judges that he desires, in order to “neutralise” the perceived political coloration of the Judiciary, is incorrect and grossly misleading. Further, the participation of the Judicial Council as well as the Council of State and Parliament, where necessary, in the processes of appointing a judge stipulated in Article 144 of the Constitution cannot be ignored. The President also does not have the power to empanel a court. Mr. President, a consequence of the Government’s policy to expand and improve the infrastructure of the Judiciary through the construction of over 100 High Court buildings around the country and the Court of Appeal complex in Kumasi which has 20 (4 bedroom) bungalows, each with a 2-bedroom outhouse for Justices of the Court of Appeal, has been the need to appoint and post judges to some of these courts. It may well be that the criticism the sitting President receives from certain quarters for the alleged appointment of many judges to Superior Courts is the price the Government is paying for improving access to justice and improving judicial infrastructure. It has perhaps become necessary to examine critically the number of appointments made unto the highest court of Ghana, the Supreme Court since 2009. The record shows seven (7) appointments to fill 7 vacancies on the Supreme Court between 2009 and 2016. I take note that there have been 15 appointments to the Supreme Court between 2018 and 2023. However, a careful scrutiny of these appointments shows that they actually filled only six (6) vacancies. Positions held by Justices Marful Sau, Agnes Dordzie, Nene Amegatcher, Prof. Kotey, Clemence Honyenuga and Mariama Owusu on the Supreme Court (all of them being appointees of President Akufo-Addo) became vacant in the course of the term of the same President on account of death and retirement. With such vacancies, fresh appointments had to be made to fill them. It is important that we remain resolute in our defence of the Judiciary at all times. Ghana has gained a worldwide reputation for its justice system and legal services. The justice system of which the Bar is an integral part, is the glue that holds the society together. Decisions of our Superior Courts are cited in cases in other jurisdictions. Our courts are recognised throughout the world for their excellence, openness to innovation and willingness to break away from conventions where necessary. For those who cannot come to terms with significant defeats in the court of law, it ought to be understood that the courts administer justice according to law. The court is not a mercy chamber to serve justice based on sympathy or affection. I have stated before that, as Attorney-General, I have not had every ruling on cases contested by me in the courts go in my favour. When rulings adverse to my interests are given against me, I do not go on a rampage attacking the courts or releasing press statements criticising the decisions. I sit back, reflect and dig deep into my legal arsenal and deploy processes known to the procedural laws of the country to reverse same. On some occasions, I may not even succeed at all but I live with the consequences. When I look back at certain cases whose outcomes I consider undesirable, regardless of my own views on the questions being judged in them, I come to the conclusion that, we have in this country a fiercely independent Judiciary in which all of us should take pride that, an aggrieved citizen can go to a court of law and challenge anyone, including decisions of the President and Parliament, and be confident that the Court will give a decision without fear or favour. I refer to recent decisions of the Supreme Court in the Ghana Centre for Democratic D evelopment & 8 others vrs. The Attorney-General, Ezuame Mannan vrs. The Attorney-General and Prof Appiagyei Atuah vrs. The Attorney-General. Lawyers in Public Service There cannot be a bigger avenue for a lawyer to demonstrate high standards and integrity in society than service in the public sector. Indeed, the historic Office of the Attorney-General whose functions are to advise the Government impartially, provide counsel to it, prosecute crime in the country and assist in the drafting of legislation, plays the role of a critical friend to Government. On assumption of office, I signalled a dispensation whereby the Office of the Attorney-General zealously protects the interests of the State in litigation, just as private legal practitioners do for their clients, and become the standard bearer in the practice of law. I am happy to note that through the sound legal advice we give to various Ministries, Departments and Agencies, we have averted huge judgment debts and spared the nation a lot of agony in other cases. Where cases end up in litigation, the litigating capacity of the Office has been immensely boosted to the point where the State now enjoys tremendous success in most civil litigation including international arbitration and cases in foreign courts and tribunals. Such is the strength of the capacity of the Office that, now memorials, pleadings and written submissions filed by the Office of the Attorney-General compare favourably with those filed by any lawyer on the international stage, and the State has been holding its own in most international arbitrations and cases in international courts, most of the time without the aid of foreign counsel. Indeed, it is only when the peculiar circumstances of a matter necessitate that recourse is had to foreign counsel. Both domestically and internationally, since the last Conference, notable successes that have led to the State saving amounts the equivalent of billions of dollars from judgment debts have been chalked by the Office of the Attorney-General and Ministry of Justice. As part of the processes of reform of the Ministry of Justice, I recently authored a letter to the Minister for Finance requesting him to consider paying to my Office a small percentage of the amounts we realise in cases. This will go a very long way to addressing the liquidity challenges of the Office. It should be noted that this request does not even cover the huge judgment debts that we save, which no one takes notice of, but which run into billions of dollars. The Prosecutions Division has also ably lived up to its constitutional duty of being the prosecutor of all crimes in the country, even though prosecution of so-called high-profile economic crime cases is thwarted by unjustified delays occasioned by the filing of unnecessary applications and frivolous interlocutory appeals. Her Ladyship the Chief Justice, this is a very grave matter. The efficiency of a nation’s justice system is tested by the manner in which cases seeking to hold high-profile members of society to account, are conducted. It is unjust and unfair for so-called high profile criminal cases involving the summary offences of fraud, wilfully causing financial loss to the State and money laundering to drag on for years whilst similar cases filed against the perceived ordinary members of society are concluded within six months to one year. There is clearly a need for legislative reform. That is why the Criminal Procedure (Amendment) Bill I spoke about earlier on is very crucial, and I request the Bar to lend its maximum support. On this score too, I am happy to say that the Legislative Drafting Division of my Ministry has been most helpful. Since the last Conference, there has been the enactment of some important pieces of legislation to strengthen accountability and promote integrity in Ghana. There has been a boost of the whistleblower regime by the enactment of an amendment of the Whistleblower Act, 2006 (Act 720) to introduce a reward system for whistleblowers. The new amendment, passed by Parliament only about a month ago, ensures that thirty percent of all revenue accruing from cases conducted on the strength of a whistleblower’s activity is paid into the Fund, and 10% of the income directly generated by the whistleblower’s efforts is paid to the whistleblower. Some time ago, I bemoaned the inimical tendency on the part of public officers to enter into contracts with high rates of interest especially compound interest. In order to curb this tendency, my Ministry successfully sponsored the enactment of an amendment to the Contracts Act, 1960 (Act 25) to prohibit the payment of compound interest by the State in transactions entered into on her behalf by public officers. Henceforth, it will be unlawful for any public officer to enter into a contract in which the rate of interest is stipulated to be compound interest. The state’s hard-pressed purse will be further protected by this amendment to the Contracts Act. The Ministry of Justice is working on a few other important bills as well. I consider the passage of an Alternative Sentencing Act an urgent necessity as a further avenue to reduce congestion in our prisons. A revised draft Community Sentencing Bill prepared by my Office is going through a process of validation by stakeholders, and will soon be laid before Parliament. When account is taken of the sublime role played by state attorneys as counsel to the Republic, it is necessary that the human resource capacity of personnel of the Ministry of Justice be boosted, so as to ensure that they deliver first-class world- standard service to the nation. In this regard, a partnership between Georgetown University, Washington DC, and the Government of Ghana represented by the Attorney-General executed by my good self in September, 2021 seeks to ensure that each year, five lawyers would benefit from post-graduate legal education sponsored by a scholarship jointly funded by Georgetown University and the Scholarship Secretariat of Ghana. It is important to indicate that the first batch of five lawyers who profited from this arrangement have returned upon successful completion of their programmes. Even though I must hasten to say that with the experience I encountered with the Scholarship Secretariat – delayed payments and incessant complaints by Georgetown over the persistent failure of the Scholarship Secretariat to pay their portion of the scholarship, I am reluctant to continue with the scheme. In addition to this, state attorneys regularly proceed to pursue various academic courses, sponsored by some state institutions, relevant to their roles. I cannot conclude this address without emphasising that there is a need for us to build a world-class legal service in Ghana, working as part of an open global community to resolve modern-day disputes, many of which have cross-border elements. As a profession, we cannot stand still. Nor would we want to do so. We need to move with the times, just as the rest of society does. But, this does not, and should not, mean change or innovation for its own sake. Upheavals and disruptions not in tune with the needs of the times are undesirable. The Bar is not without its problems but let us not forget that the law is an endlessly stimulating profession. It is serious and fun at the same time. May God help us to continue to build a Ghana founded on the rule of law, grounded in high standards of integrity and respect for fundamental human rights. I am grateful. God bless us all!!! GODFRED YEBOAH DAME ATTORNEY-GENERAL AND MINISTER FOR JUSTICE 11/09/202 3