The 2021 Kwadwo Baah-Wiredu Memorial Lecture (FULL ADDRESS)

BY: Graphic.com.gh

THE 2021 KWADWO BAAH- WIREDU MEMORIAL LECTURE

THEME : THE CITIZEN AND THE PROTECTION OF THE PUBLIC PURSE

SPEAKER: MRS. CLARA K. BEERI KASSER-TEE

Madam Chairperson, our respected Host, distinguished Guests, all protocol observed.

Acknowledgements

My sincere and deepest gratitude to Dr Charles Wereko-Brobby, the Chief Policy Analyst of the Ghana Institute for Public Policy Options (GIPPO) and the organisers of these lectures in honour and recognition of the life and work of the late Honourable Kwadwo Baah-Wiredu, for the honour to be the speaker for this year, and to share my thoughts on the Citizen and the Protection of the Public Purse.

As you will recall, the late Honourable Kwadwo Baah-Wiredu was Member of Parliament and represented the people of Asante Akim North. He was also Ghana’s Minister of Finance at the time of his death in 2008. Before his appointment as Minister of Finance in 2005, he had also served as Minister for Local Government and Rural Development (2001–2003) and Minister of Education, Youth and Sports (2003–2005).

One Constitutional provision that I have always trumpeted at the least opportunity that I get, is article 1(1) of our Constitution, which provides 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 the limits laid down in this Constitution”.  

So, every public officer, whether appointed or elected has a constitutional obligation to exercise the powers and authority given them by law for the welfare of the people. Looking out for the welfare of the people, I daresay, must therefore be the creed of every public officer or public servant.

The description and testimonies of the people who came into contact with the late Honourable Kwadwo Baah-Wiredu speak of a person who lived this creed in public office, for many acknowledge that his works in public office exemplified this creed.

It is recorded that the late Honourable Kwadwo Baah-Wiredu was the first Minister responsible for Finance to present the country's Budget Statement and Economic Policy to Parliament before the arrival of that fiscal year. This since became policy, ending, in a good way, a debate among tax law scholars on certain aspects of our Constitution that border on the applicability of retrospective tax legislation and the dichotomy and convergence of the civil and criminal aspects of tax legislation. But this not a tax class. So, I will not go into the details of this debate. Suffice it to say, by his singular act, which became policy, the late Honourable Kwadwo Baah-Wiredu  led, whether deliberately or not, policy that made this debate moot. And took us forward. That is leadership.

I therefore deem it an honour to be called upon to give this lecture in honour of an illustrious son of our dear country, and I say thank you to the organisers for this.

I am also particularly pleased to be on this platform with Madam Chairperson, who is also the Chairperson of the NCCE. If citizens are to play an effective role in our country’s democracy, we will need the critical role of the NCCE in educating and encouraging the public to defend the Constitution at all times, against all forms of abuse and violation, among others. I am therefore pleased to be on this platform with her.

I am also deeply honoured to be hosted by the venerable Dr. Wereko-Brobbey whose passion for the affairs and growth of our nation and its future has been consistent throughout the years. Never waning.

And most of all, I am humbled to be in your midst, to see the number and calibre of my dear compatriots here today, to hear my perspectives on the citizen and the protection of the public purse. Thank you.

INTRODUCTION

Our Moderator for today, and host of the Super Morning Show on Joy, Kojo Yankson and his team have recently asked the question, on the Super Morning show, what the Ghanaian the dream is. Some were of the view that there is no Ghanaian dream. Others noted, that for some,  the Ghanaian dream was to leave Ghana.

Well. I know that there is a Ghanaian dream. And a Ghanaian identity. We may have forgotten this dream along the line. But, by the time I am done tracing our history of the citizen and the public purse, we will remember not just the Ghanaian dream, but also the Ghanaian identity.

So, my views today will seek to put the role of the citizen in protecting the public purse in a historical perspective. I will do this by tracing the role and power of the citizen to protect the public purse through our history of pre-colonial, colonial and post- independence. With respect to post independence, I will focus only on the 4th Republic, particularly, the legal framework for the citizen’s engagement in fighting corruption and thereby protecting the public purse. And I will try to do this without sounding like I am in a lecture room, although a lecturer I am.

I trace the history because it tells the Ghanaian story and reveals the Ghanaian identity and the Ghanaian dream.  This should also help us to see what we have done right, what we have not done right, and what we need to do to achieve the aspirations that we set for ourselves. Hopefully, it should also help us determine whether we need to dream new dreams or whether we need to look at other ways to achieve the dreams that we have dreamed collectively when it comes to the role of the citizen in protecting the public purse.

THE GHANAIAN STORY SO FAR

PRE-COLONIAL

Public purse today, legally speaking, refers to the Consolidated Fund, the Contingency Fund and any other fund established by or under an Act of Parliament. So public money today includes tax revenue, non-tax revenue, grants and other receipts into these funds.[1]

We did not have these designated Funds in the Pre-colonial eras. Rather, the public purse during pre-colonial times can be likened to communal property in traditional African society. This included stool lands, and stool lands were held by chiefs in trust for the people, (in centralised societies such as Ashanti) or skin lands which were held in trust for the people by the Tindana or Wolome, (for the people in acephalous societies such as the Talensi and Ga).

So public monies in the pre-colonial era included proceeds from the exploitation of communal property including gold from these lands and taxes in the form of land taxes.

Although we like to think  that pre-colonial Africa was a near perfect community guided by religious and moral rules which the members of the community lived by, and where everybody was his/her brother/ sister’s keeper, and corruption was non-existent, this view is not supported by the facts, for there were some acts of abuse of office even in the pre-colonial era, and the people would seek ways to protect the public purse even then.

I will cite two examples of abuse of power or abuse of office in the pre-colonial era:

  1. There is evidence some chiefs did abuse their office for trinkets during the slave trade. This consisted in giving out gold and slaves to European slave traders for trinkets for chief’s personal use. 
  1. The history of the struggles of a family member in holding accountable their head of family with respect to proceeds from the disposal of family land or family property. 

So, there was abuse of office even in the pre-colonial era. But even in this era, our ancestors found ways to destool, through their council of elders. those undesirable chiefs or heads of families who abused their office for personal gain. They also developed their own set of checks and balances to ensure that power was used for the welfare of the people, and that the people collectively prospered from their collective resources.

So, the evidence is clear, that in the pre-colonial era, our forefathers stood up against abuse of office and sought to ensure that communal property was used for the welfare of the generality of the people.

COLONIAL

Then came colonialism. Through the indirect rule, during colonialism, the British gave what seemed like greater autonomy to chiefs than they had in pre-colonial times, but in reality, the British had weakened the real power of the chiefs to cater to the needs of their people. 

This is because, while it was harder for the people to destool a chief who had the backing of the colonialists, a chief who did not have the backing of the colonial administration could be sent into exile or in certain cases destooled.

You will recall the case of  Asantehene Agyeman Prempeh I, who was eventually exiled to the Seychelles. The British allowed him to return to his people only after he had converted to Christianity,  embraced Western education, and encouraged conversion among his Asante companions. This of course pleased the British paving the way for his return and restoration.

You will also recall the complaint of Nana Ofori Atta, paramount chief of Akim Abuakwa, that under the colonial arrangement, the chiefs were fiscally powerless, treated like weaklings in a cradle, thereby disabling them from attending to vital needs of the people without recourse to the colonial administration.[2]

Colonial  rule therefore distorted the intricate balance that the people had devised to hold their chiefs in check and to protect communal property as was the case in pre-colonial Gold Coast. In place of checks and balances, the colonialists ensured a system where the chief was more beholden to the colonial administration.

This state of affairs in the indirect rule regime during the colonial times, weakened the people’s ability to hold their chiefs to account, and weakened the chiefs ability to effectively lead their people to hold the colonial administration to account, paving the way for the colonialists to plunder the resources of the people wantonly.

By the time that the exploitative colonial period ended, the society had been permanently moved to a new equilibrium characterized by high levels of corruption, rentseeking, and insecure property rights.[3]

So contrary to what many believed that the European in pre-colonial Ghana was incorruptible, the evidence shows that the legacy of colonialism, as far as the public purse is concerned, is a legacy of abuse, exploitation of the people and their resources with no real power of the people to hold the colonial administration to account.

We know that our gallant and resilient forefathers, did not take this lying down. You will remember some of their acts of resistance including their popular “no taxation without representation”, riots, demonstrations and ultimately, independence for themselves and for us.

They stood up to ensure that their common resources will not be exploited for the benefit of the colonialists and to the detriment of the generality of the people.

The colonial period therefore witnessed wanton dissipation of the public purse with no real power of the people to protect their public purse. The result?

Our forefathers stood up again, against abuse of office and restored control over communal property , choosing that such communal property must be used for the welfare of the generality of the people.

POST INDEPENDENCE

Post-independence came. And on Ghana becoming a Republic, the status of the people changed. The people were no longer subjects, as in the pre-colonial times nor the colonised as in the colonial times. Now, they were citizens,  and that meant more real power to the people to protect and hold accountable.

With this power to hold accountable, the people will express their disdain and aversion to corruption through changing governments, be it democratically by voting out a government deemed corrupt, or overthrowing a government  through coup d’états for reasons with corruption featuring prominently in same. And so, our post- independence history is interspersed with coup d’états until the 4th Republic which begun in 1993 and still endures.

May the 4th Republic endure forever, and may we find other solutions to the problems that confront us, excluding the harrowing thoughts of coup d’états, with their attendant human rights abuses.

So here we are today. I move straight ahead to the Fourth Republic.

  1. Identification of current law on Citizen Engagement in the Fight against Corruption (CHRAJ, WHISTLE BLOWER, RTI, OSP etc);

The Fourth Republic came with the Fourth Republican Constitution, (i.e., the 1992 Constitution), which put sovereignty in the people.

So, in the current democratic dispensation, it is the citizen who is supreme, and all powers of government derive from the people.[4]

With respect to the protection of the public purse, the Constitution in article 35(8) requires the State to “take steps to eradicate corrupt practices and the abuse of power”.[5]

The Constitution also spells out duties of citizens. One of these duties as spelt out in Article 41(f)  is that

“It shall be the duty of every citizen— to protect and preserve public property and expose and combat misuse and waste of public funds and property.”

So, each one of us here, you and I have a constitutional duty to protect and preserve public property and expose and combat misuse and waste of public funds and property.

We can however carry out this duty only in accordance with law, and through the institutions of State designated by law.

So, what are the current  institutions and laws on citizen engagement in the fight against corruption?

I start with the institutions

  1. Traditional law enforcement agencies: the Police, the NIB

A citizen can make a report to the Police and/or the NIB where a citizen witnesses or has evidence of corruption, primarily because corruption is a crime under the laws of Ghana.  I believe we are all aware that investigative journalists like Manasseh Azure Awuni and Anas Aremeyaw Anas who uncovered evidence of corruption made reports to the Police together with the evidence that they had, and this resulted in prosecutions and some convictions.

  1. Constitutional Bodies: CHRAJ

There is also the Commission on Human Rights and Administrative Justice, (CHRAJ). CHRAJ is a constitutional body mandated to among other things investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney- General and the Auditor-General, resulting from such investigations.[6]

So, where a citizen has evidence of corruption, misuse of public property or abuse of power, such citizen can make a report to CHRAJ.

In addition to the Constitutional Body, we also have statutory bodies charged with investigating and assisting the citizen to protect the public purse. These include:

  1. The Economic and Organised Crimes Office, (EOCO);
  2. The Financial Centre; and now
  • The Office of the Special Prosecutor
  • EOCO:

The EOCO is established by an Act of Parliament as a specialised agency to monitor and investigate economic and organised crime and on the authority of the Attorney-General prosecute these offences to recover the proceeds of crime and provide for related matters.

So, a citizen can make a report of suspected economic and organised crime to the EOCO. 

  • Financial Intelligence Centre

There is as well the Financial Intelligence Centre, established by the Anti-money Laundering Act, 2020 (Act1044) to among other things assist in the identification of proceeds from unlawful activities; Money laundering; Tax evasion; among others.

A citizen, particularly those in the financial sector, can thus make a report to the Financial Centre on these matters, so that investigations can be carried out and for the Financial Centre to work with the relevant state institutions to facilitate the administration and enforcement of the laws of Ghana.

  • Office of the Special Prosecutor

Then we have the more recent Office of the Special Prosecutor established in 2017 by an Act of Parliament. This office is also a specialised agency to among other things:

  1. investigate specific cases of alleged or suspected corruption and corruption-related offences involving public officers and politically exposed persons in the performance of their functions as well as persons in the private sector involved in the commission of alleged or suspected corruption and corruption-related offences, and
  2. to prosecute these offences on the authority of the Attorney-General.

This is therefore yet another State Institution that citizens can report incidents of corruption and misuse of public  property to.

There are other laws in addition to the laws establishing these institutions that are aimed at assisting the citizen to carry out their constitutional duty of protecting the public purse. These other laws include: the

  1. RTI Act, 2019 (Act 989)
  2. Whistle blower Act as amended

The Right to Information Act, 2019 (Act  989)

The RTI Act provides for the implementation of the constitutional right to information held by a public institution. The main aim of this law is to foster a culture of transparency and accountability in public affairs. This law also provides for the exemptions that are necessary and consistent with the protection of the public interest in a democratic society, etc.

So, citizens can request information from public entities pursuant to the Right to Information Act.

  • The Whistle Blowers Act, 2006 (Act 720) as Amended, (The Whistle Blowers Act)

Furthermore, there is the Whistle Blowers Act which provides for:

  1. the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of others;
  2. the protection against victimisation of persons who make these disclosures; and
  • the establishment of a Fund to reward individuals who make the disclosures, etc

Under the Whistle Blowers Act, disclosure of impropriety may be made (a) by an employee in respect of an employer, (b) by an employee in respect of another employee, or (c) by a person in respect of another person, or an institution, and the disclosure can be made to a broad range of individuals and institutions including: all the institution I already mentioned above, as well as to chiefs, the media commission, GRA, the Office of the President, a member of a District Assembly, District Chief Executive, a Minister of State, etc.

In short, the Whistle Blowers Act enables you to say something when you see something, and be protected from victimisation afterwards, as well as provide for you to be entitled to an award where your disclosure leads to the arrest and conviction of an accused person or the recovery of an amount of money. 

CRITICALLY EXAMINE THE LAWS IN RESPECT OF THEIR APPLICATION AND EFFECTIVENESS AS TOOLS FOR FACILITATING CITIZENS ENGAGEMENT

In spite of these laws and institutions designed to enable the citizen hold accountable duty bearers, and to assist in the judicious use of national resources for the common good, there is still much frustration among Ghanaians, and a feeling of helplessness in their ability to hold accountable their governments and their public officers.

In some cases, citizens do not trust the institutions nor some of the structures designed for their protection upon disclosures of information for example.

This raises the question what the challenges have been in application and effectiveness of the laws and institutions of state in assisting the citizen play an effective role in protecting the public purse?

One of the challenges that have disabled the citizen from being able to take full advantage of the laws as a tool for citizen engagement is how we have chosen to interpret and operationalize some our laws?

  1. How we have chosen to interpret and operationalize some of our laws – sometimes quite defeating

I will cite two examples of this, i.e., where the law gave us power, but the relevant state institutions in interpreting and operationalising the law, took that power from the citizen.

  1. The first example has to do with how Parliament and the Auditor-General operationalised article 286 of the Constitution which deals with Asset and Liabilities Declaration

Article 286 of the Constitution provides for specified persons who hold a public office to submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by, him/her whether directly or indirectly.

The article goes further to provide timelines within which this must be done, i.e.

  1. before taking office;
  2. at the end of every four years; and
  3. at the end of his/her term of office.

So, the Constitution does not only require that a declaration of assets and liabilities be made, but it also requires that the declaration be updated every four years and at the end of a person’s  term of office.

The Constitution then goes on to provide that any property or assets acquired by a public officer after the initial declaration that cannot be not reasonably attributable to income, gift, loan, inheritance or any other reasonable source must be deemed to have been acquired in contravention of the Constitution.

In other words, if your subsequent declaration include “inexplicable wealth”, that “inexplicable wealth” will be deemed to have been acquired in contravention of the Constitution.

So, in short, the Constitution requires that the initial declaration be compared with subsequent declarations, so that if any property or asset cannot be explained, it will be deemed to have been acquired in contravention of the Constitution, thereby allowing us to trigger appropriate laws to recover the excess assets.

The comparison is not limited only to assets. It will include satisfaction of liabilities. So that if a public officer was heavily indebted, but suddenly able to offset such debts, with income that is “inexplicable”, the Constitution will deem such income to have been acquired in contravention of law, thereby allowing the citizen to demand accountability.

A simple and straight forward Constitutional provision. But how did Parliament and the Auditor-General, operationalise this provision? 

  1. Parliament enacted a law that derogated from this Constitutional provision by extending the timeframe for submitting the declaration of assets and liabilities to 6 months after taking office, when the Constitution said, “ before taking office”.[7]

The effect of this derogation is that Parliament succeeded in providing a public officer the opportunity to include in the declaration assets and liabilities that such officer may have acquired within the 6 months period after taking office, thereby defeating the purpose of the Constitutional provision, which seeks to list only those assets and liabilities of a person before they took office. 

  1. As if this derogation is not enough, the Auditor-General then proceeds to completely defeat the provisions of article 286 by adopting secret, unverified declarations. Where public officers present their declarations in sealed envelopes which the Auditor-General does not open, does not audit and does not verify.

If the Auditor-General will not open the sealed envelopes, and compare assets as mandatorily required by the Constitution, how do we know what additional assets have been acquired or liabilities have been settled? How do we then know which assets are deemed to have been acquired in contravention of the Constitution? If the citizen does not know the assets and liabilities that have been declared, how does the citizen provide information that they may have in respect assets or liabilities of a public officer? If the Auditor- General will not verify the declared list, how does the citizen know whether those assets and liabilities even exist?

So, this is an example of a good law that we have in article 286, but which law Parliament and the Auditor-General have chosen to interpret and implement in a manner that defeats the purpose of the law.

The problem here, is therefore not in the law. Rather, it is how Parliament and the Auditor-General interpreted and operationalised the law – in a manner that defeats the law.

 

A second example is in the way some State Institutions have sought to undermine the right to information either using the non-existence of approved fees and charges or the charging of exorbitant fees to discourage requests. This is in spite of the fact that:

  1. Some information is exempted from fees and charges;
  2. Fees and charges ought not to exceed the cost of reproducing the information to the applicant because information in the custody of a public institution is not information belonging to that institution only, but rather, information the institution holds in trust for the people. So, unless the information is exempted from disclosure in accordance with law and for the public interest, there ought to be no impediments of excessive costs to the citizen in accessing same.
  3. The second challenge has its root in the 1992 Constitution. Today, I talk about just three provisions, specifically, articles 70 and 195, and article 88 of the Constitution.

Article 70 and 195 deal with appointments into public office. These articles provide in short for the power to appoint persons to hold or to act in an office in the public services to vest in the President, acting in accordance with the advice of the governing council of the service concerned given in consultation with the Public Services Commission,.

Note that –

  1. The President appoints the members of the governing bodies of public corporations; and
  2. The Chairman and the other members of the Public Services Commission in consultation with the Council of State.[8]

The President therefore appoints almost everybody who heads public corporations and the institutions of state I discussed above.

This has resulted in our democracy partly becoming the spoils system, where people do everything to win political power because political power also means access to appointments into the public services, and where political party foot soldiers believe that they are entitled to oppose many appointments if these appointments are not handed to political party faithful.

It has also created a situation where some public officers feel more accountable to the political party that got them into office than the ordinary citizen.

From the reports that we have, this has also resulted in some inefficiencies and over bloating of government payroll because when one government losses elections and another party comes into power, some public officers tend to be side-lined, as the new government finds ways to come in with many of its own preferred persons.

This invariably, has led to the feeling among many Ghanaians that the office of the party foot soldier is superior to the office of the citizen, which should never ever be. For we are first Ghanaians, and must always remember this.

Our almost 30 years of practicing articles 70 and 195 has therefore taught us we deny ourselves of the use of valuable talent that could be deployed for the benefit of an entire people in favour of a somewhat political patronage system. We seem to generally agree that this, does not help us in the long term of building a unified nation.

The other Constitutional provision I want to talk about today is article 88.

Article  88

Article 88 provides for the Attorney-General of Ghana, (“AG”) who shall be a Minister of State and the principal legal adviser to the Government. The duties that the Constitution imposes on the AG are:

  • Legal adviser to Government
  • responsibility for the initiation and conduct of all prosecutions of criminal offences.
  • Responsibility for the institution and conduct of all civil cases on behalf of the State; and
  • all civil proceedings against the State shall be instituted against the Attorney-General as defendant

EOCO and the OPS can therefore prosecute only on the authority of the AG.

In our nearly 30 years of democracy, we have come to agree that the combined roles of the AG have hurt the public purse in certain instances, mainly because the AG is a political appointee, who holds office at the pleasure of the President. In these things, party big wigs and financiers are hardly irrelevant.

We have thus come to a consensus that this constitutional arrangement does not serve very well our fight against corruption.

  1. The values challenge

Our third Challenge is what I call the values challenge.

There is no doubt that as a people, we have always abhorred corruption and found ways to stand up against it. However, in the 4th Republic, at least, we see a situation where the fight against corruption is gradually being left to Civil society and a few individuals. Majority of the population tend to have an issue with corruption only when they are not the “beneficiaries” of corruption, but think corruption is a good thing once they are the “beneficiaries”.  I will cite an example.

When you get appointed into a public office, many of your friends and family expect you to bend the rules in their favour and ensure that they either get contracts or are recruited into various positions, because they believe it is their “turn to chop”. While some of them may qualify for these, there are others who do not care whether they qualify for it or not. If you are able to get them into positions or get them contracts, your friends and family will love you and call you a good person. If you are unable to do this, some of your friends and family will look at you with mistrust, call you useless and may isolate you.

If you are not lucky, those same people will orchestrate your downfall, for of what use are you to them if you cannot abuse your office for their benefit, or, ensure the family has sufficient financial security?

We cannot effectively fight corruption if the majority of our citizens are merely waiting for “their turn to chop”.

THE PROPOSED SOLUTION

When our forefathers faced obstacles, they did something about it. Now that we face challenges, we shall not throw up our hands in the air. We must do something about it. So here are my proposals on what we need to do to confront the challenges that bedevil us.

  1. More workable accountability measures in public office, including judicial accountability

Lawyers often argue that there is judicial accountability in the appeals system. This is because the appeals  system allows a litigant who is dissatisfied with a court judgement or ruling to appeal that decision to a higher court, or can ask for a review of the decision particularly where the decision is that of the Supreme Court.

This may be true to some extent, but certainly not entirely. Litigation is not cheap. And often, some parties cannot afford the financial cost of an appeal. Furthermore, if a decision is so bad so as to raise eyebrows and suspicion, there is no reason why litigants should be put to the expense of an appeal, with no consequence whatsoever to the offending judge, particularly because no costs have ever been known to be awarded against a judge for causing a needless and expensive appeal.

I will cite an example from the Justice Yaw Apau Commission Report on Payments from Public Funds arising from Judgment Debts & Akin Matters. This Report captured that in the case of Nana Sankrankyi Atta II v. Attorney-General, a writ was issued but was never served on the defendant state institutions. The trial court however proceeded to award judgement against the State on an ex parte application, (i.e., by a process that was not served on the Attorney-General). And, when the Attorney-General applied to set aside the default judgment, the Attorney-General’s application was wrongly dismissed.[9] What makes this ruling bizarre is that it is a fundamental principle of law, that when you issue a writ against a defendant, the writ must be served on the defendant to afford the defendant the opportunity to tell their side of the story. Lawyers disagree on many things. But there are a few fundamentals that they cannot disagree on. And the fundamental a service of a writ on a defendant, or where you are unable to serve the defendant or find the defendant to serve them, you apply for “substituted service”. This is basic. So, the rules court and law do not allow a judge to give judgement against a defendant who had not been served with a writ and who obviously, would not have been aware that they have a case in court against them. So far a judge to give a default judgement against a party who had not been served, and still wrongly dismiss an application by that person to set aside the default judgement and enter an appearance is bizarre and does raise some eyebrows as captured in the Commission’s Report.

Such bizarre rulings on rather basic law, although must be appealed against, should also be capable of founding a disciplinary inquiry, whose results could be a sanction varying from caution, surcharge or dismissal, etc of the judge concerned. To ask litigants to go through expensive appeal processes because of blatant recklessness from a judge, without holding the judge to account on such a case cannot qualify as accountability of the judge.

The appeal process remains a valid and time-tested judicial procedure for justice. However, just like all professionals have disciplinary procedures for dealing with their members, I believe it is time that we consider legislation on disciplinary procedures for judges that include judges being required to justifying certain bizarre rulings or judgements that they give or risks sanctions for such conduct.

This will be helpful in building more public confidence in our judiciary, as well as allowing the many upright judges that we have not to attract suspicion and disdain because some other of their colleagues may have given legally inexplicable rulings or judgements.

In my view, therefore, while Judicial jurisprudence cannot be entirely legislated, judicial accountability can. And the time has come for us to discuss more openly the issue of judicial accountability, so that we can strengthen our institutions, rid them of some of the suspicions and mistrust from some members of the public and build more public confidence in them.

  1. Make the Position of Attorney-General and Special Prosecutor elected positions rather than appointed positions

My second proposal is that we consider making the position of the Attorney-General an elected rather than an appointed one. Same to apply to the Special Prosecutor, (SP). This will require an amendment of article 88 of the Constitution to separate the role of the Attorney-General so that while the Minister of justice can be performed by an appointed official, including a political appointee, the role of  prosecution and initiation of civil proceedings on behalf of the state can be performed by the elected official who will be accountable directly to the Ghanaian people.

Furthermore, the amendment should include allowing the OSP and EOCO to be truly independent and able to prosecute as well as initial civil proceedings on behalf of the State rather than the current situation where prosecutorial powers and the powers to initiate civil proceedings all vests in only the Attorney-General. With the effect that both the OSP and EOCO initiate prosecutions on the authority of the  Attorney-General.

  1. The excessive appointment powers of the President need to be reduced substantially. Appointments of heads of many state institutions, particularly, state enterprises ought not be by the President. Rather, it should be by open, transparent and competitive appointments, etc.

Not only must there be equality of opportunity for the Ghanaian citizens, but also, Mother Ghana is entitled to the benefit of the numerous talents of her citizens, irrespective of their political party membership on non-membership. This will also indirectly deal with the “winner take all syndrome” and help to end the spoils of war system that is largely the case in the 4th Republic. Moreover, it will empower the citizen to better hold such appointees accountable in their bid to carry out their constitutional obligation to protect and preserve public property and expose and combat misuse and waste of public funds and property.

  1. An issue of Values

Finally, we need to revisit our societal definition of who a good person is, or a good leader is. We cannot continue describe as “good” the person who shares the proceeds of corruption with us and condemn the one who does not, while claiming we hate corruption. Doing so has only one effect: corruption will thrive, while only the immediate “beneficiaries” and the victims of corruption rotate. I say “immediate beneficiaries” because ultimately, corruption has no real beneficiaries. Only victims. And this victim, is our common good and welfare.

We must acknowledge that a good citizen or a good leader is not one who shares for us, monies from unknown sources. But rather, the good citizen or the good leader is the person who does what our forefathers did: stand against abuse of all forms, stands against exploitation of our common resources for the benefit of a few, stands for the use of our common resources for the public good, and ultimately acknowledges the problems that we face and seeks solutions to those problems.

CONCLUSION

In conclusion, I daresay that we have come a long way as a people. Right from days when we were scattered tribes who had systems of governance independent of each other, we came together and fought for our collective freedom and independence. Right from pre-colonial to the colonial times and our national struggles after independence, we have been consistent in our quest to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity. This has been the Ghanaian dream. Our forefathers and mothers stood up and fought for this dream. Some died for this. In their struggles and in ours, we see the Ghanaian identity and character, which has been that of  a resilient people who have stood against domination,  stood against exploitation and stood against abuse of office in all forms, whether it be from their compatriots, whether it be from their  heads of families, whether it be from their chiefs, or whether it be from colonialists. This is who, we have been.

And, we captured this Ghanaian dream in the preamble of our Constitution when we reiterated our natural and inalienable right to establish a framework of government that shall secure for us and posterity the blessings of  our dream of “liberty, equality of opportunity and prosperity, in a spirit of friendship and peace with all peoples of the world….

That is why we, who have come this far cannot afford to give up on ourselves. We cannot afford to throw up our hands in the air in helplessness and hopelessness. That is not who we are.

We must therefore keep hope alive and continuously find ways to urge us closer to our dream with all of us playing a role in national development. No one person can achieve this dream for us. We have to do it collectively. And I believe that we can.

Long live Ghana our motherland. Thank you.   

[1] Section 102, Public Financial Management Act, 2016, (Act 921).

[2] See Shaloff, S. (1974). The Income Tax, Indirect Rule, and the Depression: The Gold Coast Riots of 1931 (Impôts sur le revenu, administration indirecte et crise économique: les émeutes de 1931 en Gold Coast). Cahiers d'etudes africaines, 359-375.

[3] See Nunn, N. (2003). The legacy of colonialism: A model of Africa’s underdevelopment. Department of Economics and Institute for Policy Analysis, University of Toronto.

[4] See article 1 and 35, the 1992 Constitution.

[5] See article 35(8), Ibid.

[6] Article 218, the 1992 Constitution.

[7] See section 1(4), the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 Act 550.

[8] Public Services Commission Act

[9] Nana Sankrankyi Atta II v. Attorney-General