AVOIDING JUDICIAL REVIEW: HOW AND WHY THE COURT CAN AVOID STRIKING DOWN SECTION 172(2) OF ACT 992 by Selikem Donkor

The paramount role of democratic states today “is not about how to justify rights and other constitutional norms, but how to protect them” (Peter Atupare: 2005, p.1). In the Human Rights jurisprudence of democratic states today, the best way, to insure and protect these rights is by entrenching them in constitutional provisions – a higher law, which supersedes any other law which may want to derogate or undermine those Human Rights. I must say, though entrenching Human Rights is a bold step in protecting Human Rights, a more important and complementary factor is the willingness of the court to enforce, defend and protect those provisions. For words in a constitution are of no value, if the court cannot award them the value of sanctity, command and the worthiness of obedience (Alex Carroll: 2009, p.148).

The history of our 62-year-old nation is coupled with mixed feeling on issues of Human Rights. The First Republic ethos was depicted in the case of Re-Akoto & 7 others (1961), the second republic in Republic v. Director of Special Branch; Ex parte Salifa(1968), the third republic in Republic v. Director of Prisons & Another; Ex parte Shackleford(1981). The fourth republic as described by S.K.B Asante as the dawn of Human Rights, is depicted in the ethos of the judgment in NPP V. IGP (1993). Though today, there is an ever-growing urge by the courts to enforce Human Rights, there must also be the exercise of caution of balancing those Human Rights with Policy and Public interest considerations. The exercise of the power of judicial review by the Court should only be exercised on Prophylactic grounds where there is a clear case of a violation, an infringement or an invalidation of a Human Rights provision.

Under the 1992 constitution, the judiciary has two limbs on which an action of judicial review can be erected. The first limb is under the combined effect of Art 2(1) and Art (130) of the 1992 constitution. These provisions clone the Supreme court of Ghana with the power to strike down legislations which violate any constitutional provision. The second limb of judicial review, which is described as the matching up of executive acts with the written constitution’ (Atupare, 2016, p.9), is insured under Art 33(1), which gives the High court of Ghana, the power to enforce Human Right provisions under the constitution to render invalid, acts by actors which violate sections of those provisions (See also, Edusei v. Attorney General, 1998).

It has been intimated by two persons, under the nominal tag of Selikem Lassey and Frederick Adongo that section 172(2) of Act 992 is in violation of Art 19(2) and Art 15 of the 1992 constitution respectively. The sequel by the above mentioned persons, in quite a pejorative essay, in an advisement by way of a prolegomena, stated that section 172(2) cannot be made to stand within the conscience of the 1992 constitution since it does not only undermine Human Right provisions by way of substance, but also places a procedural restrain on such persons by denying them their economic rights. It is on this consideration that the two persons were motivated to ink their considered view on quite a relevant issue in our constitutional narrative.

It will be an exercise of overdose, a pure art of redundancy, to reverberate my earlier submissions of why the position of Lassey Selikem is untenable. However, by way of emphasis, to ensure that the end of my pedagogical exercise has met its fruition, I will restate in brief why I rejected the position of Lassey Selikem and as an extension, to inform new audiences on the historical issues underlying this write up.

Lassey Selikem stated in her considered view that section 172(2) violates the language and purpose of Art 19(2) since it presumes guilt on the part of persons who are merely charged for offences of dishonesty and fraud et cetera, to preclude such persons from accessing the office of a director in a company. To render invalid the above position, I have pointed that, it is a non sequitur and a faulty art of interpretation to presume that section 172 suggests that persons who are merely charged for the above offences are presumed to be guilty. On one hand, Lassey Selikem’s argument truncates because Art 19(2) has a limitative application only on matters of criminal proceedings and on the other hand, fails because the presumption of guilt imputed into section 172(2) cannot be gleaned from its language [section 172(2)], nor from any other provision within the language of Act 992.

In Frederick Agaaya’s submission, though accepting that the first horn of my position invalidates the position of Lassey, went on to assert that my second horn is inaccurate on grounds alone that, there is no possible reason why persons who are merely charged for the above offences should be denied the possibility of becoming directors other than that, those persons are deemed guilty of the listed offences even though such persons have not been so determined by any court. It is on this breadth that Agaaya concludes that, such treatment of persons who are merely charged for an offence and persons who are actually convicted of those offences violates the human dignity of persons who are just merely charged for those offences since it imputes a level of moral approbation on such persons when in fact they have not been so determined to have such moral incapacity. I must say that, it is only a variance in language that differentiates the position between Lassey and Agaaya. The two are ad idem though using different words and jargons to ground their views.

As a way of dismissing the position of Agaaya’s argument, I will offer two arguments. On one hand, if the current writer can show that there is no presumption of guilt on the part of persons who are merely charged with the above offences, then the position of Agaaya that such presumptions exists is rendered inapplicable. On the second hand, if the current writer can show that a construction of section 172 can be made so that it does not violate Art 15 or 19(2) or that the exclusion of persons who have been merely charged can be justified under the claw back clauses under Art 21(4)(c)- public interest, public morality, public health and security of the state, then Agaaya’s position can be deemed to have failed.

Since the presumption of guilt which Agaaya imputes on section 172(2) is not expressed in the language of section 172(2), then any such imputation is only a fanciful presumption by the learned law student and thus, can be excluded as an unjustified presumption in the face of section 172(2). It could be that the drafters had other considerations of policy reasons and not just presumption of guilt as the basis of preventing persons who have merely being charged for the stated offences from being appointed as directors of companies- such other policy reasons could be that, the said persons who have been charged might be awaiting a final determination by the court to be made on their charge or that persons who are charged and acquitted may be able to get their acquittal reversed pending the 5 year period after their acquittal through an appeal. And these policy reasons are as presumptuous as the presumption of guilt suggested by Agaaya Frederick. And since it was stated in the case of NPP V. AG ( 1994) that “it is not for the judiciary to formulate public policy issues, but the executive or the legislature, and we cannot usurp their function directly and indirectly” so it is that, the policy consideration for section 172(2) could be as many as the executive may intend it to be but since the presumption of guilt as a policy reason as suggested by the learned Law student cannot be gleaned from the literal construction of section172(2), then we shall on that ground dismiss it as only a taxonomy of abstract concepts and a cogitation on fanciful matters.

The other ground of dismissing Agaaya’s argument will be on grounds that his construction of Art 15(3) is inaccurate, impracticable, inconsistent with the current law.

TWO POSSIBLE CONSTRUCTIONS OF ART 15(3)

– a person who has not been convicted of an offence shall not be made to suffer the same treatment of any regard – be it exclusion or restriction or punishment, as a person who has been convicted of an offence – CONSTRUCTION A

– A person who has not been convicted of an offence shall not be made to suffer criminal liabilities and liabilities coupled with criminal conviction as a convicted person – CONSTRUCTION B.

By way of illustration, if construction A is accurate, then section 207 of Act 30 which prevents doctors, presidents and lawyers from serving as jurors and section 208 of Act 30 which prevents persons who are convicted of the crime of fraud or dishonesty from serving as jurors, will be in violation of construction A as made of Art 15(3). Because persons who are not convicted of offences, that is, lawyers and doctors, are made to suffer the same exclusion or restriction in serving as jurors just as persons who have been convicted of the offences of Fraud and Dishonesty. Also, under the 1992 constitution, Art 94(3)(c) precludes a chief from being a member of parliament and there again, Art 94(2)(c)(i) also precludes a person who has been convicted of High Crimes from being a member of parliament. The combined effect of Art 94(3)(c) and Art 94(2)(c)( i), implies that a chief – a person who has not been convicted of the offence of high crime would be debarred from being a member of parliament as a person who has been convicted of a High Crime.

But Construction A is an inaccurate construction of Art 15(3). This is so because Art 15(3) says that persons who have not been convicted should not be “treated as convicted persons”- emphasis mine. What does it mean for a person to be ‘treated as a convicted person’? To treat a person who is not a convicted person as a convicted person is to make the person suffer the liabilities in law which are sufferable only by a person who is found guilty of an offence by law (convicted person).

But does section 172 (2) make persons who are not convicted suffer liabilities which are only sufferable in law by persons who are convicted? To this is a reply of an Absolute NO!

This is because it cannot be contended that the barring of persons from serving as directors of companies is only a liability that convicted persons should suffer. The legislature can even make people who are illiterates, insane et cetera not to be made directors. And if these set of persons are excluded together with persons who are convicted of the crime of fraud and dishonesty, it cannot be said that such an exclusion violates Art 15(3). For these reasons, the only construction of Art 15(3) which is tenable is Construction B.

Per construction B, section 15(3) can only be violated if a person who is not convicted of an offence is made to suffer a liability which only convicted persons can suffer in law. And since exclusion from being a director is not a liability in law which convicted persons alone can be made to suffer, section 172(2) cannot be construed to have violated Art 15(3).

It has been shown without doubt that the position of Agaaya on the inconsistency between section 172(2) of Act 992 and Art 15(3) of the 1992 constitution is untenable. But does it mean that on every regard, section 172(2) Act 992 cannot be found void?

As stated earlier in my first article, Art 36(6) can be used as a basis of erecting a justifiable reason to suggest that section 172 cannot be maintained since it violates the economic rights of citizens and their equal access to economic participation.

A PROLEGOMENA TO THE FUTURE JUSTICES OF THE SUPERIOR COURT

The reader should consider this section as a possible construction of section 172(2) and not part of the basis on rendering invalid the position of the two persons as cited earlier.

TWO POSSIBLE CONSTRUCTIONS OF SECTION 172(2)

Section 172(2) could be constructed to mean that:

– any person who is merely charged – whether acquitted or convicted or who is convicted of the offence involving dishonesty , fraud or offences relating to the promotion, incorporation or management of a company shall not be appointed to become a director of a company subject to other procedural limitations under Act 992- CONSTRUCTION A

– any person who has been charged for offences involving dishonesty, fraud or any offence relating to the promotion, incorporation or management of a company where the criminal prosecution is on going and has not yet been acquitted or discharged or any other person who has been convicted of the earlier listed offences shall not be appointed to become a director of a company subject to other procedural limitations under Act 992- CONSTRUCTION B

It is my opinion that the second, (Construction B) should be used and by so doing, shall avoid the striking down of section 172 of Act 992 on the basis that it violates Art 36(6) of the 1992 constitution.

Construction B unlike Construction A interprets, “has been charged with” under section 172 of Act 992 to mean that persons who have been charged with offences and are still under criminal prosecution though have not yet been acquitted or discharged. With this construction, section 172 cannot be construed to mean that persons who have been charged though acquitted for the offences of fraud, dishonesty et cetera, cannot be appointed as Directors. It can only mean that persons who have been charged yet have not been acquitted nor discharged cannot be appointed as directors within five years before registration of the company.

This position can be sustained by the court on an argument by way of policy and public interest. It is in the interest of the public that persons who are charged with offences involving fraud or dishonesty or offences relating to the promotion, incorporation or management of a company pending a determination by a court should not be made to hold an important position such as that of a director of a company. This is so because, if these persons are later convicted of the offences of fraud or dishonesty, yet are allowed to be made to act as directors of a company pending that determination, the mischief which the Act attempts to cure; which is to prevent dishonest or fraudulent persons from being in position of directors of the company will be undermined since the persons would have been acting in such a capacity before the determination is made. From this angle it cannot be said that, the Act still presumes guilt before innocence or otherwise is shown. The Act only takes caution of the fact that pending the determination, it is prudent that persons who want to occupy the position of a director should wait for the conclusion of such criminal prosecutions before they occupy such a capacity. Therefore, the Act places a time limitation of 5years which if within that time, a person has been charged but a determination has not yet been made by the court, such a person should not be made a director. But beyond that 5year period, if the state is unable to decide, then such a person cannot be faulted for a delayed ruling by the court. And I think on these grounds of policy and public interest, section 172(2) is justifiable and can avoid the violation implications under Art 36(6) of the 1992 constitution.

 

REFERENCES

1. Peter Atudiwe Atupare: Legitimacy, Judicial Review and Human Rights Enforcement, 2005.

2. Alex Carrol: Constitutional Law and Administrative Law, 5th edition, 2009.

3. Dr. S.K.B Asante: Reflections on the Constitution, Law & Development, 2002.