THE LAWS OF GHANA AND POLITICIANS AS LAWYERS

The incessant use of the title Lawyer or Esquire, for politicians serving in Public Offices, more so Legislatures, representing their constituencies, within the Chamber of Parliament, need to be handled with care, in accordance to the regulatory orders, of the Laws of Ghana. Having the article and chosen topic, meant to serve Legal Education purpose, and safeguard media Journalism, towards press release on legal subject.

It must be acknowledged, and by experience admit, in the practice of the law, there are standards of conducts and ethics, very difficult to uphold, as an average political figure, and in most circumstance public officials, whose services of duty, do not fall in the rudiment of Legal system and the Justice Administration. Hence, the framers of the 1992 Constitution of the Fourth Republic, appreciating, the threshold requirement for;

I. The conducts and Ethics, in the practice of Law.

II. The Lawyer and Clients relationship, within the Justice Administration.

Thou, conferring these two major requirements, to the benchmark standards, of who qualifies as a Legislature, under the Laws of Ghana, to be accorded the Parliamentary privileges and immunities, framed the letters of the Law, in the Constitutional provision, to disallow a legislature, to be sworn-in at bar, and practice law, before the Bench of the Judiciary Court, of the Republic of Ghana. As stipulated in Article 94, Section (3) of the 1992 Constitution, Clause (b); which state;

“ A person shall not be eligible to be a member of Parliament, if he is a member of the Police Service, the Prison Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Exercise and Preventive Service, the Immigration Service, or the Internal Revenue Service.”

In furtherance, the Article 98, Section (2), states;

“ A member of Parliament, shall not hold any office of profit or emolument, whether private or public, and either directly or indirectly, unless permitted to do so, by the Speaker, acting on the recommendations of a committee of Parliament.”

Article 94 and 98 of the Act of Parliament, will be cited in tandem with the Legal profession (Conduct and Etiquette ) Rules [2020 (L.I. 2423)], the Rule 23, Clause (6) and (7), hence, quote as follows;

Clause (6) “ Where a member of a Law Firm, takes up a public office, that member shall not practice privately.”

Clause (7) “ Where the public office taken-up by the member of a Law Firm, is that of a Minister of State, Deputy Minister, or Member of Parliament, may practice subject to the permission of the Speaker.”

The Clause (7) of the Rule 23, of the Legal Professional code, is justified, in it interpretation under the provision of Article 103, Section 6, Clause (a), (b), (c ), as a Constitutional provision of the Act of Parliament, which, I quote;

“ A Committee appointed under this Article, shall have the powers, rights and privileges of the High Court, or a Justice of the High Court, at a trial for;

Clause (a) “ Enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise”.

Clause (b) “ Compelling the production of documents", and

Clause (c ) “ Issuing a commission , or request to examine witnesses abroad".

It is therefore, persuasive, and legally established, that a Legislature, as a qualified Lawyer, could only practice, within the Chamber of Parliament, under a prerogative license of permission, by the Speaker of Parliament.

It is thereby conclusive, as a member of Parliament, being a qualified lawyer, opt to practice, out of the boundary of Parliamentary Chamber, to the Judicial Court of competent jurisdiction, is to admit, he has stripped himself officially, of all privileges and qualified immunities accorded onto, by the Act of Parliament, as stipulated in Article 115, 116, 117, 118, 119 and 120 of the 1992 Constitution of the  Fourth Republic of Ghana, and susceptible to be sued or summoned before any Judiciary Court of Ghana, by any one, who consider the adventure necessary, to bear the full consequence, of his actions to the latter, like any ordinary citizen, before a bench of a Competent jurisdiction of a Judicial Court, without any intervention, of the Speaker of Parliament.

 

REFERENCE

n The 1992 Constitution of the Fourth Republic of Ghana, as amended in 1996.

n Legal Profession (Professional Conduct and Etiquette) Rule [2020 (L.I. 2423)].

 

† Emmanuel Tweneboah Senzu, professor of Constitutional Law and Economic Criminology, J. Reuben Clark Law School, Brigham Young University. Utah, United States. Ghana School of Law, Greater Accra. West Africa.

 

 

 

 

THE AUTHORITY FOR CONSTITUTIONAL INTERPRETATION AND THE JURIDICAL DOCTRINE

            The question, as well the debate of, who have the authority to interpret the Constitution, in other to have effects on government, is as old as the birth of Constitutional theory, and the principle of separation of power.

 The author argument, in favour of contemporary practice, will draw relevant reference, from the American Jurisprudence, accompanied with famous legal assertions, acknowledging her core-strength for Constitutional law theory, within the legal realm, though a former colony of the British Empire, with England having the progeny right, to the Common law doctrine.

The author subscribe to the debate, that each branch of government, have the authority to interpret the constitutional provision, in it orbit of operations, having regard to the essence that, all elected Office-holders, takes an oath to uphold the Constitution.

And furthermore, acknowledge the facts that, Constitutional interpretation, has it Political and administrative doctrine, as well, the Economic and policy doctrine, which are unique of it purpose, as the Marshall Court in declaration to Marbury remedy stated, and shall quote as follows;

“ Where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases, in which the Executive possesses constitution or legal discretion, nothing can be mere perfectly clear, than that their acts are only politically examinable.”

 However, the Chief Justice John Marshall, went further to dissent, and I quote,

“The Constitution imposes limits on government powers, and that these limits are meaningless, unless subject to Judicial enforcement.”

Thou, such an assertion has been the axiomatic of Juridical doctrine, in upholding the rule of law and Justice, as a scope of Constitutional Interpretation, for Judges.

Thereby, makes the Judicial Institution to be solely, and constitutionally empowered, to resolve legal disagreement or controversies, as affirmed in the famous declaration of the Marshall Court, of Marbury v. Madison (1803), and I quote,

"It is emphatically the province, and duty of the Judicial department, to say what the Law is".

The above statement of quote, as a legal maxim, from the verdict of the Marshall Court, governs the authority for ‘Judicial Review’ in addressing legal controversies, and has been a working expansion theory of the American Court, after their succession from the British Imperial rule, as argued by Dudley O. McGovney (1877-1947). ‘Judicial Review’ as a doctrine, was birth as a dissenting opinion from Sir. Edward Coke, the Chief Justice, of the Court of Common pleas of England, and affirmed by the Court, during the Judgement declaration of Dr. Bonham’s case, in the year (1610). Which, I quote an abstract section of the verdict,

“When an Act of Parliament is against Common Right and Reason, or Repugnant, or impossible to be performed, the Common law will control it, and adjudge such act to be void”.

Thou, there is enormous expectations on modern Court system, under sophisticated political regimes, to know, ‘when’ and ‘how’ to negotiate their path, in upholding the sacrosanct of the Court, as well the sanctity and reputation of it duty, and mandate to the law. For her Ministry, is to strictly administer, and uphold the doctrine of the Rule of law, and Justice, nothing less or more, hence, the wisdom to apply Judiciability principle, as a discretionary doctrine, to decline review, where prudence counsels Judicial avoidance, is the cornerstone of  Judicial power, and enforceable authority in the law.

  

[REFERENCE]

English cases on Constitutional law, 8 co. rep. 114a, 118a (1610).

Marbury vs. Madison, 5 U.S at 176 (1803).

Marbury vs. Madison, 5 U.S at 177 (1803).

McGovney, O. D., British origin of Judicial Review of Legislation. University of Pennsylvania Law Review, Vol. 93, Issue No. 2 (1944).

 _____________________________________________________

†Emmanuel Tweneboah Senzu, professor of Constitutional Law and Economic Criminology, J. Reuben Clark Law School, Provo, Utah, USA. A Cross-Departmental fellow, University of Ghana, and the Central University Faculty of Law. Africa.

 

THE DEPTH REQUIRED IN JUDICIAL LEGAL REASONING

 

                       Chief Justice, John Marshall, Portrait © Library of Congress. USA.

In all forms of Court legal reasoning, which commence from the ‘Bench’, on basis of legal controversies or ‘cases at Bar’, especially, the appellate Court legal decisions, are highly exalted in Law Books, as the final arbiter in case law development. And in the rudiments of case law, the decisions of the ‘Supreme Court’, is considered as the finest of the Common –Law doctrine, and sovereignty, to any case law developed, in the field of that case analysis, unless such decisions are overturned, per the circumstantial changes of factors to time, for such a case or similar of it kind. What grants such distinctive prowess to the outcome of the Courts decisions, and Judicial Powers? Is never merely ‘common sense’ in evaluating the law cum interpretations, which seems to be a common notion of first degree legal practitioners at Bar, and the perception of Social media journalists, about the Law, and Judicial reasoning, on matters of legal controversies.

 

The reputation of the Bench, and the Power of the Court, depends on these two major Principles outlined below, which has to be protected by Judges, under oaths at any given jurisdiction. And they are;

i. The Law being boldly asserted, and plausibly maintained.

ii. The Enforcement power of the Court decisions, within it jurisdiction.

 

In other to achieve these two principles, as stated above, the courts decisions are required to carefully follow, a set-out procedural rules, which considers in-depth analysis of circumstantial factors, and comparative case-study, to uphold the doctrine of ‘stare decisis’, then, with deep understanding, and appreciation to the invisible political interest, and forces at play, as well, the constitutional powers, and it limitations, which, the Judges holds as a Court, before other arms of government, in relation to a given case, with the ultimate purpose, to entrench execution of orders by the Courts, without antagonism and reputation struggle.

 

Furthermore, the consideration of the decisions of the Court, as a bearing on socio-economic implications, towards prevailing circumstance, as well to future policy, and the aim to plausible maintained the law, while defending the powers and reputation of the Judicial arm of Government, the Supreme Court of certain jurisdictions, has carefully established the scope of Judicial review, in accordance to their Constitutional mandate, to guide ‘when’, as well ‘why’ and ‘how’ to assume authority, to intervene in legal controversies of constitutional concerns, in a manner to avoid the ‘enforcement power’ of the Court, into a political ridicule, by other arms of government.

 A classic example to such cases, is ‘Marbury vs. Madison’, thus, analyzing the strings of political forces, as circumstance around the case, in the year (1801); Robert G. McCloskey wrote in his work, and I quote him;

“ the decision of the Courts, was a masterwork of indirection, a brilliant presentation of the Chief Justice John Marshall’s capacity, to sides-step danger, while seeming to Court it, to advance in one direction, while his opponents were looking in another.”

 

This was an event, exhibited in wisdom, of the exemplary legal reasoning skills, of the John Marshall Court (1779–1835), considered as the keystone of the American constitutional law-arch, as James A. Garfield posits,

 

“Marshall found the constitutional papers; and he made it power.”

 

The Chief Justice, John Marshall was brilliant to know ‘when’ and ‘how’ to insulate the reputation of the Courts, from external danger, emanating from other arms of government, by upholding to the principles of Justiciability doctrine, and how to exert the powers of the Courts, in it full enforceable strength, to a right timing.

 

 

[Reference]

1. Madison, The Emergency of a ‘Great Case’ 38 Wake Forest L. Rev. 375 (2003).

2. Robert  G. McCloskey, The American Supreme Court, 40 (1960).

3. William D. Pederson and Norman W. Provizer, Great Justice of the U.S Supreme Court, 3 (1993).

4. Senzu, T. E., Complex Judicial decisions: To Judge between the law and public Choices. Blackstone Journal for Asia-Africa Jurists, 3rd.ed., 9(47):1-5, (2026). Philpapers Publishers.

 

-----------------------------------------------------

†Emmanuel Tweneboah Senzu, professor of Constitutional Law and Economic Criminology, J. Reuben Clark Law School, Provo, Utah, USA. A Cross-Departmental fellow, University of Ghana, and the Central University Faculty of Law, Ghana. Africa.

 

GHANA ASSOCIATION IN SIERRA LEONE - CONSTITUTION

 

GHANA ASSOCIATION IN SIERRA LEONE (GAS)

  

[MEMBERSHIP]

 

CONSTITUTION

 

© December, 2023.

 

  

ARTICLE [I]

 

The Constitution shall become effective upon approval of two-thirds of the Membership and the signatory of the Chairman, dated.

 

Name of the Chairman………………………………………………………………

 

Signature

  

ARTICLE [II.] NAME AND PURPOSE

SECTION A.

[1] The official name for this organization is the GHANA ASSOCIATION IN SIERRA LEONE (GAS).

[2] This organization will use the name and its acronym “GAS” in all publicity materials and correspondence.

 

SECTION B.

[3] The purpose of this organization, is to promote and protect the welfare of the members, as Ghanaians, as well as Sierra Leonean-Ghanaian Blood lineage, within Sierra Leone.

[4] All activities of this organization must be directed towards this purpose.

 

ARTICLE [III.] MEMBERSHIP

SECTION A. REQUIREMENT

[5] All admitted members, will be assessed and evaluated by a three-member standing committee, under the authorization of the Chairman, to certify the validity of their Ghanaian origin.

[6] All admitted members, are required to demonstrate support for this organization.

[7] Membership decisions, will not discriminate based on sex and gender identity.

[8] All members are required, to pay a fee for annual membership prior to taking part in any organization activity.

[9] A qualified member is someone admitted into this organization, with good standing in the payment of his/her membership annual subscription, and of goodfate.

[11] The annual fee subscription proposal, shall be developed by a five-member committee, as an ad hoc constituted committee, under the authorization of the Chairman, with their proposal subjected to voting, by a two-third membership vote of approval.

 

SECTION B. RIGHT

[12] All qualified members, are required to attend all meetings and events of the organization.

[13] If a fee is charged, to attend particular events of the association, the Chairman will institute a three-member ad hoc committee, with the responsibility to establish a fee scale for voting members, non-voting members, and others as deemed appropriate.

SECTION C. WITHDRAWAL OF MEMBERSHIP

[14] Members may have their membership withdrawn, for failure to adhere to the requirements and condition for membership as outlined in Section A.

[15] A simple majority vote of the quorum of membership, at a regular or special meetings, shall be sufficient to withdraw membership.

[16] Members to be voted upon, in this regard will be notified of the intention to do so in writing at least seven working days, to mount a defense where need be, before the disciplinary committee, prior to the meeting at which the vote will be taken.

 

ARTICLE [IV.] OFFICERS

SECTION A. OFFICERS TITLES

- Chairman

- Vice Chairman

- Secretary

- Treasurer

- Organizer

 

SECTION B. DUTIES

[17] The Chairman, will ‘Chair’ all the meetings of ‘GAS’, and will call special meetings as needed. The Chairman will vote on ‘GAS’ matters only in case of a tie.

[18] The Vice-Chairman, shall ‘Chair’ any ad hoc committee or task forces of the organization; as well assume the duty of the Chairman in his/her absence.

[19] The Secretary, shall take records and file meeting minutes, and produce all official correspondence for the organization. And officially serve as the Bank signatory with the Chairman of the organization.

[20] The treasurer, shall maintain records and reports on the financial transactions of GAS.

[21] The organizer, shall direct the planning of the organization’s events and social programs.

 

SECTION C. REQUIREMENTS FOR RUNNING FOR AND HOLDING OFFICE

[22] All officers and candidates for office, as at the year two thousand and twenty-three AD are recognized and appointed by Ghana consulate in Sierra Leone, to hold office for the first –four years unless circumstance demands for resignation.

[23] On the 15^th of December, two thousand and twenty-seven of the year of our Lord, an election shall be conducted, to vote for officers either to sustain the current office, as their first term or replace them with new candidates, as the circumstance shall permit.

[24] Every elected officer qualifies, for only two terms in office. With the election to vote for office; is a requirement that all eligible officers, must be voting members.

 

SECTION D. NOMINATIONS AND ELECTIONS

[25] Nomination for all offices, shall be conducted at the officially agreed meeting Hall, of the organization on the 15^th of December, as the Organization's election date every year.

[26] Any member, may nominate any other qualified member, including himself or herself.

[27] A simple majority vote, of the quorum at the Election meeting, will be sufficient to elect an officer. If there are more than two candidates, and no candidate receives a majority votes, then, there will be a run-off vote, between the top two voted recipients, in the general meeting.

 

SECTION E. REMOVAL FROM OFFICE

[28] Officers may be removed from office, for failure or inability to perform duties, or for violation of membership clauses.

[29] Officers to be voted upon in this regard, will be notified of the intention to do so in writing, at least fourteen working days, granting them their right to legitimate defense, prior to the meeting at which the vote will be taken.

[30] A two-thirds majority of quorum, present at a regularly scheduled meeting, shall be sufficient for removal of an Article IV Officers, from office.

[31] Any officer may resign, by submitting a letter to the Chairman. However, the Chairman may resign, by submitting a letter to the Ghana Consulate of Sierra Leone.

 

SECTION F. TERMS OF OFFICE AND VACANCIES

[32] The term of office, shall be in every two years, beginning and ending on every fifteenth of December on the annual calendar.

[33] Should a vacancy in office occur, prior to the designated time, there will be another nomination, and election for the vacant office, as the circumstance shall permit.

[34] An eventuality where a vacancy in office occurs, prior to nomination and election, for that vacant office, the associated office below the vacant office, shall promote it officer, deemed qualified, to assume the vacant office, as an interim officer-in-charge, until an elected officer assumes the post.

ARTICLE [V.] MEETINGS

SECTION A.

[35] Regular meetings will be held in the second, and the fourth week of every month, precisely on Sundays, in the evening noon, as the circumstance shall be appealing, to the greater percentage of membership.

[36] Special meetings may be called by the Chairman, with a ‘Notice of special meetings’ communicated to all members, at least seventy-two hours by the Secretary, in advance of the meeting.

[37] To conduct business at any meeting, two-third of the entire voting membership, must be present to form a quorum.

 

ARTICLE [VI.] COMMITTEES

SECTION A.

[38] The organization shall have four standing member committees, therein;

i. Program-Event Committee

ii. Membership Admission Committee

iii. Election Committee

iv. Disciplinary Committee

 

i. Program-Event Committee (PEC)

The major purpose of ‘PEC’, is to plan and organize events for the organization to promote its agenda and fundraising.

ii. Membership Admission Committee (MAC)

The major responsibility of ‘MAC’, is to admit credible members in line with the organization’s vision and mission. As well supervise their inauguration under ‘PEC’ towards membership full adoption at ‘GAS’.

iii. Election Committee (EC)

This committee shall be responsible, for all nomination procedures and voting events of GAS.

iv. Disciplinary Committee (DC)

This committee shall be responsible for membership misconducts and breaches, of the constitutional rules of the organization, and recommend appropriate punishment for membership, as assigned in voting.

[39] Any other Committee to be constituted, by the Chairman, beyond ‘Article V’ Committees, for special purpose duty-vehicle, within the organization, will be considered as, an ad hoc committee under this constitution.

 

ARTICLE [VII.] AFFILIATIONS

SECTION A.

[40] This organization recognizes, and understands that it holds its legal liability for actions, though an affiliate of Ghana Consulate in Sierra Leone, thus, provides no blanket indemnification insurance coverage, for any activities of the organization.

[41] The Ghana Association in Sierra Leone, is an umbrella body, with its constituents of Freetown Chapter, Makeni Chapter, Bo Chapter and Kenema Chapter.

 

ARTICLE [VIII.] BY-LAWS AND AMENDMENTS

SECTION A.

[42] By-laws can be added to this Constitution, by a simple majority vote of the entire membership at regular meetings of GAS.

[43] This Constitution takes precedence over any by-laws.

[44] The Constitution of the Republic of Sierra Leone, and National regulatory laws take precedence over this constitution, and any added by-laws.

 

SECTION B.

[45] This Constitution shall be amended by a two-thirds votes, of the entire membership at regular meetings of GAS.

[46] Notification of such a motion, shall be undertaken by the ad hoc committee of the Constitutional review; and must be made known to members, at least thirty working days in advance, before the actual votes are taken.

[47] All amendments of this Constitution, where need be, will be conducted under a constitutional review ad hoc committee, in compliance with the regulatory procedures thereof.

 

ARTICLE [IX.] FINANCIAL MATTERS

[SECTION A]

[48] All financial transactions of the organization, shall be conducted under a commercial license Bank account in Sierra Leone. With those transactions lacking formal validations, and unconfined in financial circle, is required to be backed with legitimate receipts for records, as the circumstance could permit.

[49] The treasurer, serving as an accountant of the organization, shall give quarterly account reports to the Membership, in general meetings.

[50] The entire account transaction of the association, will be subjected to an external audit, annually, and reported to the membership, by the secretary at Annual General Meetings (AGM).

 

  

GAS CONSTITUTION © December 2023

Sponsored and Authored By:

 

 † Emmanuel Tweneboah Senzu, DBA, PhD. SJD.

Professor of Constitutional Law and Economic Criminology, J. Reuben Clark Law School, Brigham Young University, Utah, USA. Cross-Departmental fellow, University of Ghana and Central University Faculty of Law.  Former fellow to the Law School, Fourah Bay College, University of Sierra Leone. Executive Director, Blackstone Africa-Asia Jurists Center.