The Role of Legal Professionals in Consolidating Ghana's Democracy and Good-Governance

THE ROLE OF LEGAL PROFESSIONALS IN CONSOLIDATING GHANA’S DEMOCRACY AND GOOD-GOVERNANCE

 Introduction

To talk about Good Governance from the African perspective, we need to make reference to the Durban Declaration on Democracy, Political, Economic and Corporate Governance, which mentions among other things “just, honest, transparent, accountable, participatory government and probity in public life”. Accordingly, African States in that declaration have agreed to work with renewed determination to enforce the rule of law; equality of all citizens before the law; individual and collective freedoms; the right to participate in free, credible and democratic political process; and adhere to the separation of powers, including protection for the independence of the judiciary.

In the achievement of these goals the role of the legal profession is very significant. I would therefore like to talk about the legal profession within the context of democratic governance. Before addressing this particular issue, I deem it equally important to talk about Ghana’s level of commitment and performance in ensuring democracy and good governance as portrayed in its assessment under the African Peer Review Mechanism.  

Democracy and good governance

The African Peer Review Mechanism (APRM) is a mutually agreed instrument voluntarily acceded to by the member States of the African Union and it is an innovative approach to improving governance. The origin of APRM was the 37th Summit of the Organization of African Unity held in July 2001 in Lusaka, Zambia, adopted a document setting out a new vision for the revival and development of Africa, which was to become known as the New Partnership for Africa’s Development. (NEPAD)

Note that as of June 2005, the APRM Participating Countries were, Algeria, Angola, Benin, Burkina Faso, Cameroon, Democratic Republic of Congo, Egypt, Ethiopia, Gabon, Ghana, Kenya, Lesotho, Malawi, Mali, Mauritius, Mozambique, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Tanzania, Uganda Expressions of Intention to Accede to the APRM have been received from: São Tomé and Príncipe, Sudan, Zambia.

The mandate of the APRM is to encourage conformity in regard to political, economic and corporate governance values, codes and standards, among African countries. Ghana has been a shining example in the APRM process, being among the first group of countries to sign the Memorandum of Understanding on 9 March 2003.

Ghana instituted a National Governing Council in compliance with the requirement for participating countries to have an independent self-assessment of its governance record in  four areas, namely: Democracy and Political Governance; Economic Governance and Management; Corporate Governance; and Socio-Economic Development. This article, however, will focus on Democracy and Political Governance.

To date, Ghanaians have had more than a decade of peaceful and acceptable constitutional rule. Ghana has also been able to change political rulers through the electoral process in a manner generally perceived to be free and fair. The 2000, 2004 and 2008 elections have confirmed the citizens’ acceptance of the electoral principle as the legitimate mechanism for acquiring political power and assuming leadership of the institutions of governance. There is a growing sense of relief, confidence and pride amongst Ghanaians that they have, at last, achieved political stability. It is this achievement that has informed the decision of the US President Barrack Obama to choose Ghana as his first country of visit in the Sub-Saharan Africa after becoming a President.  Addressing the Ghanaian Parliament in Accra on 11th July 2009 to outline the US Foreign Policy towards Africa, President Obama confirmed it by saying “Here in Ghana, you show us a face of Africa that is often overlooked by a world that only sees tragedy or a need for charity” The credit is even that, although our system of governance has identified certain major deficiencies in the laws and practice, Ghanaians are confident that they have the freedom, ability and will to rectify these.

Ghanaians have also created unique institutions and processes that other African countries could consider emulating or adapting for their own use. These include the Annual Governance Forum, where stakeholders discuss selected issues on democracy and good political governance. It is held every year since 1998 under the auspices of the National Governance Programme. The other, instituted in 2001 is the People’s Assembly, an annual interaction between the President and the people. The Assembly allows Ghanaians from all walks of life to pose any questions to the President.

The Assembly and the Forum have expanded the political space for ordinary people and have brought the government closer to them. These institutions have certainly demystified the government, rendering it less remote.

Even more remarkable is the fact that, unlike earlier democratic transitions in the country that lasted only for a few years before they were aborted, the current transition has lasted over sixteen years and Ghana continues to move forward as a progressive and democratic state.

In the past, few women hold key decision-making positions in the economic, political and social life of Ghana, and they encounter serious hindrances to their involvement in politics and in public political life. However, the ruling government stipulates 40% representation of women at all levels of governance, on Public Boards, Commissions, the Cabinet and Council of State. 

Rule of law and supremacy of the Ghanaian Constitution

The supremacy of the Constitution and entrenchment of the rule of law are the basic foundations on which all the institutions of governance are grounded. The constitution and the rule of law offer protection of individual life; protection from the government’s arbitrariness or abuse of power; and the assurance that one can enjoy the fruits of one’s labour.

The 1992 Constitution contains ample provisions that entrench the rule of law, and constrain the abuse of power and discretionary authority of those in government positions. The courts have clearly asserted their independent powers of judicial review and are willing to pronounce certain acts or behaviour of the Executive branch of government unconstitutional. Ghana has demonstrated that it is possible for the judiciary to be independent in Africa.

Although the rule of law is a reality in Ghana, some sections of the populace are routinely denied access to justice because they cannot afford legal representation. The high cost of justice in Ghana is of serious concern. Attempt is being made to alleviate the situation by running legal aid facilities, but these are few and insufficiently funded.

The judiciary itself suffers from lack of adequate capacity to administer justice. Availability of office space and courtrooms is a major problem, both at the headquarters in Accra and countrywide. Each year, budgetary allocations have been insufficient to meet the growing infrastructure needs of the judiciary. This affects the easy flow of justice and ultimately compromises the rule of law.

Legal provisions recognizing and guaranteeing human rights

In providing a firm constitutional framework for promoting respect for human rights by all Ghanaians and preventing abuses by the State, the 1992 Constitution has been a refreshing improvement on previous constitutions of the country.

Chapter 5 of the Constitution provides not only for civil and political rights, but also for social and economic rights.  Among the civil and political rights enshrined in the 1992 Constitution, are: the right to life, the right to liberty and security of the person, the right to human dignity, the right to equality and freedom from discrimination, the rights of accused, arrested and detained persons, the right to free speech and expression, the rights of political participation, the rights of free association and assembly.

These rights are not absolute. Conditions for deviating from them, usually for reasons of State, are also stipulated in the Constitution.

Several provisions in the 1992 Constitution underscore the democratic rights of Ghanaians, and secure the independence of electoral mechanisms to ensure free and fair electoral processes. The Electoral Commission (EC) and the National Commission for Civic Education (NCCE) promote and protect the fundamental constitutional rights of Ghanaians to participate in political and related activities. The judicial system is designed to protect these rights and offers opportunities for redress by aggrieved persons and groups whose rights are violated or infringed upon.

Anti-Corruption and Good Governance

Corruption is a major governance problem in Ghana. However, Ghana has made a remarkable progress in the control of corruption in public life over the past decade. This is attributable to the collaborative effort of Anti-Corruption institutions in Ghana such as:  The Serious Fraud Office (SFO); The Commission on Human Rights and Administration of Justice (CHRAJ); The Commonwealth Human Rights Initiative (CHRI); The Ghana Integrity Initiative (GIL); The Ghana Chapter of Transparency International; and The Security Agencies. Through their contributions and recommendations, several anti-corruption bills have been enacted into law by the Ghanaian Parliament including: Protected Public Interest Disclosure Act, (Whistle Blower Act); Public Procurement Act; Financial Administration Act; and many others.

For the first time in 2007, public hearings of the Public Accounts Committee of Parliament took place and based on this the Attorney General’s Department had set up an Anti-Corruption Unit to study recommendations made by the Committee and to prosecute cases that need to be prosecuted. Several pre-emptive measures are in place to counter money laundering. The measures include Narcotic Enforcement and Sanction Law, 1990; three conventions on terrorism, ratified in 2002; A four-phase action plan designed in 2003 in response to the Inter- Governmental Action on Money Laundering under the aegis of the Economic Community of West African States (ECOWAS); The establishment in 2004 of the Financial Intelligence Unit. Also, complementary efforts have emanated from the operations of banking and non-bonding financial institutions and the law enforcement agencies.

Although Ghana has been enthusiastic in acceding to, and ratifying regional and global standards and codes, a number of key human rights instruments remain to be ratified. These include Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and UN Convention Against Corruption, (2003). This can weaken the country’s democracy and good governance record. Ghana should consider adopting a binding time-frame within which to accede to the several AU conventions. They include: African Children’s Charter, 1990; Amendments to the Constitutive Act of the African Union, 2003; AU Convention against Corruption, 2003; Protocol on the African Court of Human and Peoples’ Rights, 1998; and Protocol on the African Court of Justice, 2003.

The Role of the Legal Profession

First of all we need to know of the legal profession in Ghana because there is a clear link between the profession itself and the role it is playing in democratic governance

The legal profession allows a qualified lawyer to practice as either a solicitor, barrister or both and can practice in all courts. The General Legal Council is the statutory body regulating the profession and deals with complaints against professional conduct.

The Ghana Bar Association (GBA) is the professional association for lawyers in Ghana.   Membership is not mandatory but all admitted members of the profession are automatically registered as members with the GBA.  Although not built in statute, it is recognized by the Constitution.  As at now 450 firms are recognized by the GBA as being of good-standing.

The legal market is dominated largely by small commercial practices, a number of which are increasingly benefiting from building informal associations with international law firms.

Foreign lawyers are permitted to practice in Ghana provided that they have the required qualifications from their home jurisdiction, a letter of good-standing from their home bar, satisfied by the General Legal Council and pass the required exam in Ghanaian Constitutional law and the Customary Law of Ghana. Non-Ghanaian citizens must demonstrate seven years PQE in a country with a compatible legal system.

The legal professionals in Ghana can take pride in the fact that they have played a central part in the restoration and consolidation of democracy and good governance in the Fourth Republic. This is because, throughout the unconstitutional rule in Ghana, the Ghana Bar Association acted as the opposition, insisting at its congresses on the need to return to civilian democratic rule under a constitution that can guarantee human rights and the rule law

It is of great satisfaction to the profession that the recent elections of December 2008 witnessed a historic, peaceful transfer of power from one democratically elected government to another with cooperation from the judiciary and the legal practitioners. The electoral laws and the constitution have been put to test in courts and have reviled several gaps and overlaps in our electoral system, but the test (though controversial) has given cause to amendments and development of the law. 

The quality of the performance of the legal sector is an important determinant of our prospects for consolidating democracy and good governance. An efficient legal system affords more effective protection of the human rights, freedoms and liberties of the citizenry, and available evidence from reputable studies shows clearly that a well functioning legal system promotes business growth and rising incomes. Where there is no rule of law, formal contracts cannot be respected and enforced, businesses will not grow and investors will not risk their funds.

It is for all these reasons that the Ghanaian government is keenly supporting a wide-ranging programme of legal sector reform, which involves: the mechanization and computerization of the superior courts of record; the fast track system, designed to accelerate judicial output; the reform and enhancement of the capability of key legal sector agencies such as the lower courts and the Ministry of Justice; the reform of the legal and regulatory framework for doing business in Ghana; and the reform of the system of land tenure to permit the modernization of agriculture.

Conclusion

Ghana is making great strides to ensure that it remains one of the most stable countries in the region and to sustain good and democratic governance. In other to achieve this goal certain issues need to be addressed seriously.

The time has come for all the legal professionals to make concerted efforts to change the negative image and ensure the reform of the legal system so that it can deliver improved quality of service to the people. The new administration in Ghana under President Mills believes firmly that an efficient legal system is an integral, vital part of the sort of state and society it wants to build. Our vision of the country is to create a society in which the state protects the vulnerable and the disadvantaged, because the humane society requires that each be his brother or sister's keeper.

Such a society needs a legal system which can resolve disputes quickly, fairly and cheaply; which can frame the laws and regulations in clear, comprehensible language; which can provide the legal support for a vigorous enterprise economy; which guarantees equal access to justice and equal treatment before the law for all citizens; and which can ensure the supremacy of the rule of law and respect for human rights.

As we can see, the lawyer must make a multifaceted contribution to the new democratic society where probity and accountability are expected of all public officials in the performance of their duties. Specialization is today the way of ensuring excellence of service. We need good constitutional lawyers; good human rights lawyers; good commercial lawyers; lawyers well-versed in arbitration law; lawyers familiar with complex financial instruments; we want lawyers who are on top of the incredible expansion in communications law, cyberspace and e-commerce; who specialize in employment law, tax law, property law, natural resource law and environmental law.

We need also lawyers who understand the new rules of engagement of the international trading system being formed under the aegis of the World Trade Organization (WTO), so that we can take advantage of the rules and not be exploited by them and who will lead the way towards the establishment of a more just and equitable trading system. In the trips - regulated world, we need lawyers who are fully conversant with the intricacies of intellectual property law, including the protection of our national heritage and traditional knowledge. Social development and good governance, thus, demand a broad range of legal skills.

We also need to reform the legal profession and modernize our methods of work. We must embrace as a matter of urgency the new information technology and make our legal service easier and quicker.

It is necessary to reinforce the application of our code of ethics and strengthen the sanctions for delinquents and violators. Reforms across the entire breadth of our legal system are what are required to improve the quality of our legal system and strengthen the capability of the Ghanaian legal profession to face up to the exciting challenges ahead of it in our new democratic dispensation.

We have to design a positive organic policy against corruption, emphasizing clear rules and sustainable institutions that achieve sanction with justice.  Entrenching the rule of law is the overriding consideration of public policy in contemporary Ghana. And the rule of law requires that the criminal process, especially, is invoked against citizens not because of their political allegiance but because of their involvement in allegedly criminal activity.  

The consolidation of democracy and the promotion of constitutional rule demand also that we deal with some of the issues from our past that impede the sustainability of democracy and peace in the Ghana.