THEME: Ghana’s democracy under the Fourth Republic – Gains, Challenges and Prospects

10 a.m.

Monday, September 12, 2022,

 Ho, Volta East Region.

His excellency the president of the Republic, Nana Addo Dankwa Akufo-Addo,

Representative of his lordship the chief justice, justice jones victor Mawulorm Dotse,

Honourable ministers of state,

The chairman of the conference and president of the Ghana Bar Association, Yaw Acheampong Boafo,

The Volta Regional Minister, Dr. Archibald Letsa,

Deputy Attorney General, Alfred Tuah Yeboah,

Deputy Attorney General, Diana Asona Dapaah,

Members of the Bar Council,

The president of the Volta Regional Bar,

Members of the Bar,

Distinguished ladies and gentlemen, friends of the media

I am pleased to be called upon to deliver this address.

I always look forward to the annual bar conference with great anticipation for this simple reason. Apart from a discussion of germane issues of national concern, it presents a distinct opportunity to enjoy the company of the bar, judicial and other colleagues away from the adversarial arena. Comradeship and collegiality are key cornerstones of our profession. They nurture courtesy, industry and appropriate ethical conduct. Taking a look around the hall, I cannot but fail to place on record that, indeed, we are a strong bar, in quality and in quantity.

I find the theme for this year’s conference – “Democracy in the Fourth Republic, Gains, Prospects and Challenges”- so relevant to the current circumstances of the nation that I elect to stay within it for the purpose of this address, even though I have been given a blank cheque. If for any reason I veer outside the parameters of the theme, let all be reminded that at the Bar Conference, the Attorney-General has a licence to speak on any topic at all.

The record shows that the people of this land have in unmistakable terms, always registered their desire to live under a democratic form of government. The “Bond of 1844”, executed on 6 March 1844, even though was the first attempt by the British to formalise the hitherto undetermined relations between themselves and the people of the Gold Coast, was the culmination of agitation against the dictatorship of Governor George Maclean. The formation of the Aborigines Rights Protection Society in 1897, which survived the withdrawal of the two Land Bills of 1894 and 1897 in respect of which the Society had been formed, constituted the fulcrum for agitation for constitutional reform in the Gold Coast.

The United Gold Coast Convention (UGCC) was formed in 1947 to resist colonial rule, and this paved the way for the independence of the Gold Coast a decade later.

Such was the appetite of the people of this country for democratic governance that, after over twenty years of the imposition of military dictatorship between 1972 and 1993, apart from that brief period of democracy from 1979 to 1981, the citizens of Ghana overwhelmingly expressed their choice to live under a democracy. Thus, on 28^th April 1992, the people of Ghana in an overwhelming vote of 92.59%, being “Yes” votes, adopted the Constitution 1992. That Constitution prescribed a form of government universally touted to be the best means of assuring a determination by the citizenry of the kind of leadership deemed fit for the country at all times, that is, democracy. Ever since, Ghana has been the beacon of the quest for democracy, good governance and generally, the rule of law in Africa.

Mr President, that democracy is the best form of government, is a fact of history. The acclaimed British statesman, Sir Winston Churchill, in his address to the British Parliament in November 1947, stated:

“No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government, except for all those other forms that have been tried from time to time.”

In the view of Churchill, therefore, all other forms of government tried in the course of human history are worse than democracy, even if democracy is perceived to be the worst form of government. 

An illustrious and very distinguished son of Ghana, the former UN Secretary-General, our own Dr Kofi Annan (may his soul rest in peace), observed in a speech at CDD’s Kronti ne Akwamu Lecture in June 2016 thus:

“Ghana has thrived under democracy since it was reintroduced [under the Fourth Republic], and our society, as well as our economy, have thrived as a result. We must never stop reminding ourselves of that fact. Yes, our country has its problems, but all countries have problems.”

In my respectful view, the attributes of a sound democratic state are ultimately the same as the objects of the Rule of Law. I regard seven (7) of these attributes as the most important. These are:

1. The right of individual citizens of the land of sound mind and reasonable age to vote at regular elections- with each individual entitled to one vote under the principle of “one man, one vote”;
2. The existence of a majority rule, i.e. where a party secures the vote of more than half or the majority of the votes of the eligible electorate or such amount of votes prescribed by the laws of the country;
3. The entitlement of each individual of a statutorily prescribed age to offer himself for a political office;
4. A freely elected government accountable to the people;
5. Where the government loses the confidence of the people, that government must be changed through a constitutionally established procedure and not through any coup d’etat or other violent means.
6. The existence of independent arms of government – the Executive, Legislature and Judiciary, with each performing distinct roles and mindful of the limits to their constitutionally imposed functions.

It is, however, worthy to point out that though the three branches of government are independent, they are also inter-dependent, as it pertains to every democracy.

• A free and responsible media cognisant of not only its rights but also its responsibilities as regards free expression and the rights and dignity of members of the society.

Importance of the role of the Electoral Commission in Ghana’s democracy

These vital elements of a democracy show that the conduct of elections is the bedrock of democracy itself. National elections represent a pre-eminent and, I will say, an undeniable vehicle for the electorate of every country (the people) to exercise real power over how they are governed and by whom. It is imperative, therefore, for the body constitutionally charged with the organisation of free and fair elections in a democracy to live up to its constitutional duties.

I am pleased to observe that over the course of time, the Electoral Commission of Ghana clearly has demonstrated a sound understanding of the sacred responsibility it bears to the people of Ghana to organise elections in a manner prescribed by the Constitution. This clear understanding of its basic duty to hold credible elections was firmly established in 2020, when under the most trying conditions forced upon the world by COVID-19, the Electoral Commission of Ghana remained unshaken in its quest to give to the people of Ghana an opportunity to select their own leadership. The Electoral Commission indeed rose to the occasion and delivered an internationally affirmed free, fair, and perhaps, the most transparent elections in Ghana since the inception of the Fourth Republican Constitution.

Such was the credibility of the election that the complaints of unfairness made in the Supreme Court by a losing candidate in the Presidential election, strangely bordering on allegations of “wrong aggregation of votes” and “vote padding,” even though proven to be untrue at the trial, collectively involved a meagre 6,622 votes – an amount patently insignificant to materially affect the outcome of an election in which the winner won by well over 500,000 votes.

It is important to note that the total number of registered voters in the last election was 17,027,941. The total number of valid votes cast (definitely less than the turn out) was over 13 million. Without belabouring the point, I allude to these figures to demonstrate that the appetite of the people of Ghana to freely choose their leaders in the generally acclaimed best way remained the same even in the teeth of COVID-19. I consider it fitting as the leader of the Bar, to call on lawyers to support the Electoral Commission as presently constituted, to persist in its quest to deliver for the nation a free, fair and credible election capable of measuring up to the test of international standards, and also for the Bar to resist the misguided and parochial efforts of certain characters to undermine our democracy through unwarranted attacks on the Electoral Commission.

The Judiciary and the legal system of Ghana

Of the three branches of government, the one whose functions I daresay, is crucially indispensable and fundamental to our existence as a country, whether under democratic governance or not, is the Judiciary. It thus cannot be far-fetched why, even upon a military take-over, the Judiciary is the only organ of government preserved.  It is the Judiciary which gives to the nation both certainty and clarity of the law.

The effect of the work of the Judiciary permeates every facet of our nation’s life. Lack of confidence in the integrity of the judicial and legal system holds back investment, trade and hopes of prosperity in countries that desperately need that investment and trade. So, it is important to say this morning that, for me, the rule of law and the independence of the courts sit at the very heart of our society and our democracy.

We cannot underestimate the enormity and complexity of the work of the Judiciary. Judges are often called upon to make decisions on some of the most difficult moral, social, economic and political questions. They are decisions that very few of us would feel comfortable making. However,  it is judges, with their wisdom derived from long experience, intellect, discipline and knowledge of the law, that shoulder the grave responsibility for adjudicating on those issues in furtherance of the principle that justice should be done.

As Attorney-General, I have not had every ruling on cases contested by me in the courts go in my favour. An example is the recent decision of the Supreme Court in Ezuame Mannan vrs. the Attorney-General and the Speaker of Parliament in which the Supreme Court by a 3-2 decision, declared section 43 of the Narcotics Control Commission Act, 2020 (Act 1019) as unconstitutional.

But when I look back at that case, regardless of my own views on the questions being judged (and of course, I have taken steps in accordance with due process to lodge a review against the decision), it seems to me that what it actually does illustrate is a very profound constitutional principle in which all of us should take pride namely, that an aggrieved citizen can go to an independent Supreme Court and challenge anyone, including their elected government and Parliament, and be confident that the Court will give a decision without fear or favour. This is because we live in a country governed by the rule of law, not the rule of men or women.

This country has gained a worldwide reputation for its justice system and legal services. Central to that reputation is the integrity of her Judiciary and the quality of judgments emanating from our courts, with decisions of our Superior Courts cited in cases in other jurisdictions. Our courts are recognised throughout the world for their excellence and openness to innovation.

Chief Justice Azu Crabbe in 1976 summed up the contribution of our legal system to the progress of the nation, on the occasion of the centenary celebration of the establishment of the Supreme Court in these words:

“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 the 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”.

Subsequently, decisions of the Supreme Court in cases like Tuffour v. Attorney-General, New Patriotic Party v. Attorney-General (the 31^st December Case), New Patriotic Party v. Ghana Broadcasting Corporation, J. H. Mensah v. Attorney-General, Nana Addo Dankwa Akufo-Addo & 2 Others v. John Mahama & Electoral Commission (the 2013 Presidential Election Petition), James Kwabena Bomfeh vrs. the Attorney-General (the National Cathedral Case), National Democratic Congress v. the Attorney-General and Electoral Commission (the voter registration case) and John Mahama vrs. Nana Akufo-Addo & the Electoral Commission (the second Presidential Election Petition case) have had a pervasive and profound effect on the stability of our nation and the lifestyle of the people.

Former President Mahama’s unjustified attacks on the Judiciary

The Judiciary has shown consistently that it is the last line of defence for our country. It was thus with great dismay and embarrassment that I heard a person who has occupied the highest office of State, former President John Mahama, recently launch an unwarranted attack on the integrity of Ghana’s Judiciary. And I observed that this was really the latest instalment of systematic and caustic attacks on our courts by the former President, albeit unjustified. I am compelled to comment on same in this address because they border on the security of the state and constitute a deliberate pattern of conduct aimed at undermining the independence of the Judiciary, an arm of government whose autonomy is crucial to its proper functioning. Such conduct is clearly deplorable, coming from one who has occupied the highest office of President and aspires again to that office. At this moment, it is important for all to note that I express this sentiment not because I stand in opposition to former President Mahama as a politician. My dismay is founded more on the fact that I am a lawyer and every lawyer ought to concerned about these kinds of views expressed by a political leader in this country!

It will be a sore omission if I fail to recognise that there have been other leaders of the political party to which the former President belongs – the National Democratic Congress (NDC). I do not recall either the late Jerry John Rawlings or the late Prof. John Evans Atta Mills mount such a systematic and deliberate campaign of hate against the Judiciary. In fact, never once did Mr Mahama’s former boss, Prof Mills launch any attack at all on the Judiciary.

Closely examined, one will notice that the source of the former President’s unjustified attacks on the Judiciary is the unanimous dismissal by the Supreme Court of his rather porous election petition, which indeed was dead on arrival and bound to be dismissed by any court worth its salt in any country. One cannot fail to note that his petition before the Court in 2021 was a bundle of incompetent claims devoid of any substance. As stated already, the allegations of “wrong aggregation of votes” and “vote padding,” which he put before the Court, collectively involved only 6,622 votes, a figure which could not in any way affect the outcome of the presidential election. It is therefore perplexing how, if such a petition is dismissed by the Court, it should form the basis for allegations of unfair treatment by the Court.

It ought to be understood that it is the duty of the courts to administer justice according to law. The court is not a mercy chamber to serve justice based on sympathy or affection.

I observed with even greater worry that the former President, a non-lawyer, made those comments at a meeting of the Legal Committee of his political party. None of the lawyers raised a finger to contest the wrong and dangerous propaganda by the former President. By their silence, they became abettors of the propagation of hate against the Judiciary. It is worrying because 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.

I must however commend the former President for one thing – his contribution to the debate on the need for constitutional reform. His views on the need to amend article 71 on the payment of emoluments to certain office holders are of interest to me. Never mind the fact that he has been enjoying those same facilities and privileges for over 20 years and continues to enjoy them.

Mr President, it has taken decades, arguably over a century, to build the integrity of Ghana’s Judiciary. Let us not condone the imprudent actions of citizens to destroy it through baseless attacks.

We must be proud of our legal service. I was in England last week, and it was with satisfaction that upon the conclusion of my address at the 39^th Cambridge Symposium on Economic Crime, I learnt of the desire of the new Attorney-General of the United Kingdom, Rt Hon Michael Ellis QC to meet me at the House of Commons last Thursday, 8^th September 2022. It was literally his first day at work, having been appointed Attorney-General by the new Prime Minister just a day before. I was thus his first guest on assuming office. It was with a sense of immense pride that I listened to the glowing tribute the Attorney-General of England and Wales had to pay to Ghana’s democracy and reforms we are pursuing to modernise the criminal justice in Ghana and expand access to justice through a strengthening of the legal aid scheme. I recall that just a few weeks earlier, you had launched two funds to assist with legal aid and the law reform. I must say that it is my aspiration that with the Help of the Almighty God, next year, I should be in the position to report to Conference the progress that has been made by the Legal Aid Commission and the Law Reform Commission pursuant to the establishment of the two funds.   

Mr President, the Rt Hon Michael Ellis QC was full of commendation for your stance on Ukraine. He considers your position exemplary and the way to go.

For the Bar, I must say I was intrigued to observe that the new Attorney-General of England and Wales is an ardent believer in the wig and gown and considers same emblematic of the noble traditions of the Bar.

Problems with the justice system

The Bar ought to unite in a common effort to project to the world a strong and clear message about how exceptional this country’s Judiciary is.

Certainly, I do not say that everything in the garden is wonderful. The Judiciary is not without its problems. The Bar should, however be concerned about more serious and fundamental problems with our justice system.

A court system which leaves accused persons to face state prosecutors with no, or no adequate representation, is hardly satisfactory. We need to strengthen legal aid. A court system in which summary trials of criminal cases can last for more than four years militates against the right to a fair trial, defeats the ends of justice and must be looked at again. A prison system comprising overcrowded and understaffed seminaries of crime is not a functioning prison system. These matters should be of prime concern of the Bar.

Barristers are not mere “economic actors” to borrow the words of Sir David Clementi, former Chairman of the British Broadcasting Corporation (BBC). We are professionals whose role is to ensure that justice is done according to law. We act not only in the interest of consumers but also in the public interest. At the heart of this profession are three commitments: to independence, to excellence and to advocacy. These three tenets, combined with the Bar’s high degree of versatility, 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.

We must be careful to ensure that our reactions to adverse rulings given against us by the courts do not traverse the bounds of ethical behaviour. On this note, may I remind you that Dr. J. B. Danquah’s only reaction to the judgment in Re Akoto, which posterity has adjudged to be obnoxious, was “I am grateful”. President Akufo-Addo’s only reaction to the verdict in the 2013 Election Petition, which some scholars perceived to be wrong, was “even though I disagree, I accept it”. Such is the time-honoured standard of civility in law practice we should aspire to observe at all times.

As Attorney-General, in addition to strengthening the criminal justice system, I will strive to ensure the establishment of a viable, fair and expeditious system of commercial dispute resolution through the setting up of a Ghana Arbitration Centre as envisaged under the Alternative Dispute Resolution Act, 2010 (Act 798). With the frequent referral of disputes to arbitration, we need to make Ghana the hub of arbitration in Africa generally and in West Africa in particular.

Mr Chairman, as I resume my seat, I will remind Conference that every democracy has imperfections. Yet democracy remains unmatchable as the best form of government. For a manifestation of the imperfections of democracy, we need to look no further than recent events in the modern age’s self-declared preceptor and exporter of democracy around the world, the United States of America. For all the robustness of her constitutional and democratic structures, tweaked and nurtured painstakingly over the years since the founding of America 245 years ago, it emerged from a close encounter with the spectre of political anarchy and a near insurrection on 6^th January 2021. However, it still holds on fast to democracy without question.

Democracy may have its imperfections but it is indispensable. I wish you all an enjoyable conference.

God bless us all!!!

GODFRED YEBOAH DAME

ATTORNEY-GENERAL AND

MINISTER FOR JUSTICE

11/09/2022