Shooting Down Separation Of Powers

“Whilst recognizing the general legislative Powers of Parliament in Ghana, except as have been circumscribed by the constitution, I am constrained to advice that Parliament is devoid of a power through the use of Parliamentary resolutions to control the process of admission to the Ghana School of Law. The mode of exercising legislative power enshrined in Article 106 of the Constitution does not admit of resolutions.”

-Hon. GodfredYeboah Dame, Attorney-General and Minister of Justice

SOME OF US ARE NOT JUST STUDENTS OF POLITICS, but for good measure, sticklers of Democracy, Rule of Law and Separation Powers.

Democracy, as defined by the authorities is“a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” The word “democracy” is derived from two Greek words “demos” (people) and “kratos” (rule). Inherent in a democracy are: various freedoms and rights – citizenship, equity, voting rights, freedom of assembly and speech, freedom from deprivation of one’s right to life and liberty as well as minority rights… (one can go on and on…) it is all, a “rule” of the people by the people, and for the people.”

Plato said: “Freedom in a democracy is the glory of the state and, therefore, in a democracy only will the freeman of nature deign to dwell.” Aristotle noted: “Democracy is when the indigent, and not the men of property, are the rulers”. Socrates is quoted as saying: “Every action has its pleasure and its price.” Rule of law implies that every person is subject to the law made by the society.

John Locke compared “rule of law” with the “divine right of kings” and said that freedom in society means being subject only to laws made by legislature that apply to everyone. A.V. Dicey, a 19th century British jurist noted that “no man is above the law”. Lord Bingham in November, 2006 highlighted 8 sub-rules under Rule of Law and noted: “The core of the existing doctrine of the rule of law was that all public and private persons should be bound by and entitled to the benefit of laws publicly and prospectively issued and publicly administered by the courts.”

Separation of Powers, “triaspolitica” of Baron Montesquieu refers to the division of a country’s government into branches (the executive, legislature and judiciary) each with separate, independent powers and responsible so that the powers of one branch do not stand in conflict with those of the other branches. Contemporaneous with this concept is the concept of “balance of power” as propounded by Montesquieu which sees this as the best form of government “in which the legislative, executive and judicial powers were separate and kept each other in check to prevent any branch from becoming too powerful.”

We have prefaced this article in a labyrinthine discourse on the variouselements of democracy, just to bring into focus the raging impasse between Parliament and the Judiciary over the 499 students’ admission to the Ghana School of Law.

Late in the 90s, when we applied to go to the Ghana School of Law, we had to take an entrance examination. We did not know how our scripts were marked: all we saw was a list of some 40 candidates who had “passed” with the late Arhin (Bou. Chedid) of Nsoatre – Sunyani topping the list and our goodselves “dropping” to second position. There were more than 2,000 candidates who sat for the entrance exams. The others had all “failed” – and the students from Legon and other places joined us early in the 2000s. Ours was a 4-year course; theirs a 2-year professional course.

There have been various criticisms of the enrolment of law students in the Ghana School of Law over the decades: the “purists” do not see why people who completed their first (or second or third) degree courses in other disciplines and gone over to work should vie for placement into the Ghana School of Law. Others think facilities should be expanded to accommodate all who seek legal education – to discourage them from travelling to the Gambia, Rwanda et cetera, Kenya for the same purpose.

The plight of the 499 students who scored 50% and over and denied admission to the Ghana School of Law may evoke pity – the “mining” in preparation for the exams, the period of intense study, the denial of self to the loss of money spent in the registration. Is their right to education as enshrined in Article 25 of the 1992 Constitution being trampled upon? 2021 is not the same as 1990s (compare the use of handy mobile phones now with Google, Twitter, Instagram, Facebook as against 1990s with the bulky “yam” phones with very few applications.

The 499 candidates rightly filed a Writ in the Court of law, and the case has been adjourned to November 9th, and it has not done its full course.

Before the case is called, Parliament steps in to “direct” the General Legal Council to admit the 499 students. In a motion filed by the Deputy Majority Leader, Alexander Afenyo Markin, the First Deputy Speaker, Joe Osei Owusu (a veteran lawyer) deputizing as Speaker announced the decision of the honourable house: “The General Legal Council is hereby directed to proceed and admit all the students who passed in accordance with the advertised rule of the examination” and charges the Attorney-General to ensure that this directive is carried to the letter.” This should be a great relief for the students and all “concerned” citizens. But is this the answer?

Yes, Parliament represents people, and the opinion of the 275 members should ordinarily prevail over all other people’s sentiments. BUT some people are asking: “… wherein lies Separation of Powers?” What investigation did Parliament do before arriving at the decision? Could Parliament not have invited the Ghana Legal Council or the Judicial Council or some other kindred body to discuss the issue?  Why would Parliament adopt this “machoistic” posture? Would it not have been better to “jaw-jaw” rather than “war-war”?

Some people are arguing that the powers given Parliament by the 1992 Constitution (Articles 93-124) are for policy decisions, and do not confer on it the power to run the day-to-day activities of institutions, the General Legal Council included.

Honourable Rockson Nelson Dafeamekpor MP for South Dayi and Honourable Francis Xavier Sosu, MP for Madina have sent an 11-page memo to the Parliament for an amendment to the Legal Profession Act, Act 32 to exclude the Chief Justice as well as other justices of the Supreme Court from the General Legal Council, to define the functions of the GLC and to provide for reforms in Legal Education…”

The Attorney-General and Minister of Justice, Godfred Dame, has called the bluff of Parliament: “In accordance with Section 13(i) (e) and (4) of the Legal Profession Act, 1960 (Act 32) the power to regulate admission of students to pursue courses… Section 1(5) of Act 32… underscores the capacity of the Executive not the Legislature through the Minister responsible… to advise the Council on major matters of national importance…” Is this going to end like the battle of Waterloo in which Napoleon of France was defeated in June, 1815 and he was exiled to the Island of St Helenar? What happened to dialogue – the interactive process of exchanging ideas, listening to the other viewpoints, showing respect…?

From AfricanusOwusu-Ansah