A CASE OF UNCONSTITUTIONALITY, A VIOLATION OF HUMAN RIGHTS OR A WRONG CONSTRUCTION- A VISIT BY LASSEY SELIKEM TO THE HIGH COURT OF GHANA by Selikem Donkor

In an era of Human Rights, it is very common to wake up to calls by actors both in the national and international arena, erecting claims of a considered character charging against constitutions, government officials and public actors for violating Human Rights provisions which have gained consecration. Our very own, Lassey Selikem made such a call today. The learned friend of the current writer suggested in quite a categorical language that a certain provision of the New Companies Act ( Act 992) has violated or is in violation of a Human Right provision under Chapter 5 of the 1992 constitution thus, urging the courts to annul such a provision should it ever appear before them.

The writer is of the view that there is no prima facie case of contradiction or inconsistency between clause (i) of subsection 2(a) of section 172 of the Companies Act 2019 and paragraph (c) of clause (2) of Article 19 of the 1992 constitution.

According to the article written by the learned friend, section 172(2)(a)(i) by its language and meaning presumes that, applicants or persons seeking to become a director of a company shall not within a five year legal calendar before the making of the application for incorporation, be convicted or charged with the criminal offence of fraud or dishonesty or with a criminal offence relating to the promotion, incorporation or management of a company.

Per the natural meaning of words in the said section 172(2)(a)(i) there are two classes of persons who cannot be appointed as directors. The first category is with persons who have been charged with, gone through the criminal procedure and have been convicted for the above listed crimes. The second category is, persons who have merely been charged with those outlined offences.

It appears a bit prejudicial and farfetched as a case of emotive judgment that the Companies Act seems to exclude persons who have merely been charged with offences. But is this exclusion illegal? As part of our criminal jurisprudence, it is an elementary principle as held in the case of Martin Kpebu v. Attorney General (1996) that unlike the civil law tradition (as a legal tradition) where accused persons are presumed to be guilty unless proven otherwise, our law under article 19(2)(c) of the Constitution presumes that, an accused person is innocent unless shown to be guilty. And the metric of such proof is a proof beyond all reasonable doubt. Per the holding of WOOD JSC.CJ resounding the Majority opinion in that case, Art 19(2) applies in criminal proceedings and that ‘Article 19(2) gives a suspect under investigation or an accused on trial the benefit that he is innocent until the court has found him guilty after a hearing or following a plea of guilt’ – Emphasis mine.

It is a trite position in law as held in the case of Republic v. Special Tribunal- Exparte Akorsah (1980) that the task of interpretation is not one of only construing meaning but also one of determining the scope and limits of a provision. From the above quote from Wood JSC.CJ, the scope of Art 19(2)(c) is only during criminal proceedings. Thus Art 19(2) can only apply to invalidate or validate a procedure, an act or an Act where that Act attempts to change the presumption of innocence of an accused person during a criminal trial.

In the case of Martin Kpebu (supra), section 96 which prohibited the issuance of bail for certain offences was deemed as void on grounds that it implied a presumption of guilt on the part of an arrested person or an accused person during the process of criminal prosecution. The said person is made to suffer a limitation of liberty even before he or she is convicted by a court. And thus, any limitation whatsoever on the liberties of persons under Art 21 can only be made by a court on grounds listed under ART 14 of the 1992 constitution. It appears from this holding that, the tentacles of Art 19(2)(c) is only into criminal matters, thus can only be applied to invalidate an Act which attempts to prejudice or imply a contrary presumption of innocence into our criminal procedure.

Also, the preamble of Article 19(2) aids us in noting the scope of Art 19(2)(c). The preamble states that, ‘A PERSON CHARGED WITH A CRIMINAL OFFENCE SHALL — ‘then Clause (c) continues to state that —‘be presumed to be innocent until he is proved or has pleaded guilty’. This shows the provision only applies where a person is charged with an offence, that is, when the said person is within a criminal proceeding. A question which we must ask is, does section 172(2) of the Companies Act 2019 charge a prospective director with an offence or presumes guilt of any such person?

I think the best reply will be an absolute NO. The Companies Act (Supra) only attempts to exclude persons who have been charged with or convicted for certain offences from having a participatory role in the management of companies as directors. The Act does not presume that persons who are charged with those offences whether convicted or acquitted are indeed guilty of those offences. Any such construction will be an absurd and an implausible construction of section 172. It is a foundational rule of interpretation that where a provision is capable of two or more constructions, the court should prefer the less absurd construction because the court cannot be made to say that the framers of the provision intend for such an absurdity (R V. WIMBLEDON JUSTICES, see also, SAM V. COMPTROLLER OF CUSTOM & EXCISE). Thus, section 172 of Act 992, does not presume that persons who were merely charged for the offences of dishonesty, fraud, et cetera and yet not convicted are indeed guilty of those offences as our learned friend wants us to believe.

In our statutes, and even in our Constitution, there are provisions that seem to exclude persons from participating in certain offices on grounds of earlier conviction or the status of the person. In the 1992 Constitution, clause (5) of Article 2 and clause (2) of Article 94 prevents a person who has been convicted for a high crime from being eligible for appointment into a public office for 10 years after serving the sentence of conviction for a high crime, and a person who has been convicted for a crime of high treason or treason or offence involving the security of the state, respectively. What appears to be the difference between the exclusionary clause under section 172 of Act 992 and the provisions as cited above is that, where as the latter focused on offences which the said persons have been convicted for, the former has an exclusionary clause for persons who have been merely charged for those offences. Though such an exclusion seems unfortunate since innocent persons who are caught up by frivolous acts of prosecution by the state for the listed offences will be barred from being appointed to be directors of companies within the limitations outlined under section 172 even when proved to be innocent, the court is not a court of emotion to construct the law by what we feel. Rather what is written and has been defined in law is the focus. And per that definition, there is no way one can construct that Art 19(2)(c) limits section 172(2) to the extent that, the latter provision is inconsistent and void.

What I think is tenable is to find other provisions which can lead to a prima facie case of violation on the part of section 172 of Act 992. Under Art 35(3) of the 1992 constitution, there is a political burden on the part of the state to ‘promote just and reasonable access by all citizens to public facilities and services in accordance with law’ and also under Art 36(6), ‘the state shall afford equality of economic opportunity to all citizens ….’. Thus any act on the part of state actors, be it parliament, citizens or the executive which excludes and prevents economic freedom and equality of economic opportunity to citizens can be deemed to be in violation of the provisions cited above unless shown to be justified with the exceptions recognized under Article 21 (4)(c) and Art 164 – in public interest, public defense, public health and running of essential services.