Ain't no party like a Ghana Bar Association party

It so happened that Friday was both the end of my internship and the end of the legal year in Ghana (I don’t wish to imply that the courts are somehow unable to function in my absence, but it can't be a coincidence). 

To mark the latter – and no doubt the former as well – the Ghana Bar Association held a party.  It was a very enjoyable, relaxed affair held in the lovely gardens of the GBA offices in Accra.  There were lots of tables and chairs set out under trees (each chair was draped in white satin and tied with a big bow – from behind it looked like everyone was sitting on a debutante) and waiters were wandering round with drinks.  A delicious buffet meal was served.  Loud – very loud – music was playing right from the start, and people were soon dancing. 

I was glad to have the opportunity to spend some time with people that I knew from the office and from elsewhere as well as to meet new people.  I thoroughly enjoyed myself and was among the last to leave. 

It was a fantastic way to end what has been an amazing and inspiring month in Ghana.

The festive scene at the GBA end of legal year party

Mellisa, the pupil at Sam Okudzeto & Associates, and her friend Dzifa

Me and Nene Amegatcher

Me and (from L to R) Lester, Dominic, and Patrick - all from Sam Okudzeto & Associates

Day 19 - Commonwealth Human Rights Initiative

On Friday I visited the Accra office of the Commonwealth Human Rights Initiative.  This is an independent, international NGO which aims to “ensure the practical realisation of human rights in Commonwealth countries” by promoting awareness of and adherence to human rights principles.  Its work includes research, advocacy, networking, public education programmes, providing legal advice, and facilitating legal representation. 

The Accra office is currently focused on two main areas: Access to Justice and the Right to Information campaign.  This latter is a project aimed at shaping and securing the passage of a Right to Information Bill.  I looked at various booklets that CHRI had produced on the matter and was interested to see the frequent use of comparisons from other Commonwealth countries, such as the Sri Lankan Freedom of Information Bill, the South African Open Democracy Campaign Group, and Parivartan, the Indian Express Right to Know Campaign.  It was another reminder of how useful the Commonwealth can be in providing examples and precedents for countries which share the common law system. 

The Access to Justice project is aimed at making people aware of their rights and in defending against infringement of those rights.  The principal focus is on prisoners: every week CHRI visits police stations in Accra and Kumasi to speak with prisoners in custody there and to assist those who may be being improperly treated.  Paralegals at CHRI will take a statement from an inmate who complains of abuse, question the police, and then make follow-up calls and visits to ensure that the situation is rectified.  Between March and June 2012, 233 detainees’ cases were received by CHRI.  The types of “irregularities” observed include beatings, unlawful arrest, the mixing of young prisoners with adults, and unlawfully withholding bail. 

I was shocked to discover the extent to which this last occurs.  Prisoners are not supposed to be detained for longer than 48 hours, but an intern at CHRI told me that of the prisoners to whom she spoke on a recent visit, the inmate who had been there the shortest period had been incarcerated for 6 months.  I was told of another case of someone who been in prison awaiting trial for 14 years. 

Unfortunately, CHRI does not have the funding to employ lawyers: the Access to Justice team is made up of paralegals and interns.  CHRI is only able to take on cases to court if a lawyer can be found who is willing to act on a pro bono basis – and not many are.

My visit to CHRI helped clarify something which had been puzzling me.  I think I have mentioned before on this blog that criminal cases make up a relatively small proportion of the overall caseload here, in contrast to the UK where it is a major part of the courts’ work.  It seems that – as with other areas of law - many matters are settled within communities or alternatively, the suspect will be released if he makes amends immediately.  Apparently, only the more serious offences such as murder, robbery, defilement, and rape, will go to court. 

I spent the afternoon at Sam Okudzeto & Associates, finishing off a research project and attending the office meeting.  As mentioned previously, at each meeting an update is given on all the cases that have been in court that week.  I was struck – once again – by the delay endemic to the Ghanaian legal system.  Fifteen cases were discussed.  Of these, all but four were adjourned.  In three, the judge was ill; in another three, the other side didn’t turn up; in yet another three, the other side’s lawyer didn’t turn up; in one, the witness didn’t attend; and in the last case, an administrative error meant that the application had to be withdrawn.  This is clearly very far from being a scientific survey, but nevertheless it is telling.  I have discussed elsewhere the positive aspects of a slightly more relaxed attitude to and in court, but these levels of absenteeism surely illustrate the disadvantages.

Day 18 - the Sterling Partnership, the Supreme Court, and the Ghana Oil Club

At 8:30 on Thursday morning I met with two lawyers from the Sterling Partnership, Yaw Eshon and Patrick Anim-Addo.  Both Yaw and Patrick used to practise in the UK: Patrick was – as many CEBA members will know – a barrister at 12 Old Square Chambers.  We had an interesting discussion about the law in the UK and Ghana.  I asked them about something which had been puzzling me, namely the fact that criminal matters seem to make up a relatively small proportion of cases in the Ghanaian courts.  They suggested a couple of reasons for this: firstly, the lack of legal aid, which means that many defendants don’t have a lawyer, and secondly, the fact that many matters are dealt with in a rather rough and ready way without lengthy court procedures.

I then went to the Supreme Court to hear judgment being given in the constitutional law case that I had been following there.  Nene Amegatcher of Sam Okudzeto & Associates was counsel for the plaintiff.  It was alleged by the plaintiff that a provision of the Local Government Act, by which the President was authorised to create and redraw districts, was unconstitutional because this power was vested in Parliament only and could not be delegated.  Unfortunately, the Supreme Court decided in favour of the defendants (the Attorney-General and the Electoral Commission).  It was held that the power vested in Parliament was to “make provision” for the creation and redrawing of districts, which was not the same as actually creating and redrawing them.  They further held that where an executive action is expressly authorised by Parliament, there is a rebuttable presumption that it is constitutional which was not rebutted in this case. 

There was a rather amusing moment after the judgment had been read and the chair had delivered his concurring opinion.  Mr Amegatcher rose and thanked the panel for their judgment and for clarifying an important point of law.  Counsel for the Attorney-General likewise got to his feet and expressed his thanks.  Counsel for the Electoral Commission then rose – and apologised for being late.

In the afternoon I attended a lecture organised by the Ghana Oil Club on indemnity and exclusion clauses in oil and gas contracts.  My motivation in attending was, admittedly, more a desire to take up all opportunities offered to me than a burning need to know more about oil and gas indemnities.  I was also somewhat tempted by the promise of refreshments – indeed, I had to be gently reminded by Mellisa, when I asked what time “the lunch” was, that we were attending a lecture with lunch, rather than lunch with a lecture.  The lecture was, in fact, really quite interesting.  It was by a UK lawyer and the principles discussed were ones with which I was familiar (duty to mitigate, implied terms, Hadley v Baxendale etc). 

Unfortunately, I suffered some agony of spirit getting there.  The lecture was to start at 1:30pm.  I had been told it was a fifteen to twenty minute drive.  At 1pm, I was ready to leave.  At 1:10pm, we (Mellisa, Joy – the other intern – and I) seemed to be almost on our way.  At 1:15pm, however, it was discovered that Joy had some work which needed to be done before we left.  At 1:30pm, we were still in the office.  At 1:35, we had left.  At 1:40pm, we were lost – and again at 1:50 and 2pm.  When we were not lost, we were stuck in traffic.  At 2:15pm, we arrived – some forty-five minutes after the lecture had begun.  Throughout this period, Mellisa and Joy were relaxed and calm.  They made jokes about us being fashionably late.  I, on the other hand, from about 1:10pm was increasingly stressed and anxious and was trying to chivvy the others without it being painfully obvious that I was chivvying.  I was mortified when we entered the lecture room, and apologised obsequiously to the lecturer afterwards.  I hadn't felt so British since leaving Newcastle.

Day 17 - the Human Rights Advocacy Centre, the Court of Appeal, and the Greater Accra Bar Association

Back in Accra, Wednesday began with a visit to the Human Rights Advocacy Centre (HRAC).  This organisation provides free legal advice and representation to those who can’t afford a lawyer.  As with the other organisations I have visited, many of the complaints it receives are settled by mediation, conducted by lawyers at the centre.   HRAC also conducts research into different issues: currently, it is looking at female prisoners, abortion, and mental health issues.  What I liked about this organisation, in contrast to some of the other places I have visited, was its self-consciously political approach.  This is demonstrated by, for example, the portraits of inspirational black women (from Sojourner Truth to Condoleeza Rice) that decorate the walls on the way in and by the polemical news articles by HRAC members that are pinned to the noticeboard. 

I next went to the Court of Appeal.  I realised the other day that I had visited the District, Circuit, High, and Supreme Courts but not the Court of Appeal, which seemed something of a glaring omission.  I listened to several applications, including motions for a stay of execution, leave to amend, and an injunction. 

Again, however, I was struck by the administrative problems and delay Ghanaian courts seem to experience at every level.  In the application for an injunction, the judges were unable to decide the application because the necessary documentation was not on their docket.  The time of the twelve or so parties who were involved in the case and who were all attendance was wasted – not to mention that of the court.  Similarly, in another case, the application had been filed without the relevant papers: the fifteen or so individuals who were concerned again all trooped out, with nothing having been achieved.  

I then went to the High Court to attend the end-of-year meeting of the Greater Accra Bar Association.  This was – I am pleased to report - a livelier affair than I expected.  Many of the problems with administration and delay which I have commented on were raised.  I had had the privilege, the day before, of getting a judicial opinion on the matter: now I was able to get the viewpoint of counsel.  The bar blamed the bench and the bench the bar, but everyone, it seemed, blamed the bailiffs – the people responsible for serving documents.  At the end of the meeting I was introduced to the President of the Greater Accra Bar Association, Frank Davies. 

I spent the rest of the day in the office of Sam Okudzeto & Associates, working on a case concerning a dissatisfied customer of an airline.  It was good to get stuck into some legal research and I was pleased to be able to make use of my (still extant) Westlaw login – worth every penny of the BPTC fees...

Customary arbitration

Ever since arriving in Ghana, I have been interested in the relationship between the different systems of law here, and particularly in the way in which customary law interacts with the civil and common law.  I have already mentioned the different types of marriage as a good example of this interplay, and another such is arbitration.

Arbitration is governed by the Alternative Dispute Resolution Act 2010.  Part I deals with what might be called “legal” arbitration, namely arbitration by official institutions according to a set of defined rules.  Arbitration under this section is very similar to arbitration under the UK Arbitration Act 1996.

Part III is concerned with “customary arbitration”, namely arbitration by traditional authorities such as chiefs.  This is similar in many ways to legal arbitration.  For example, the circumstances in which customary arbitrators may be removed from their posts are almost the same, and there is a requirement under both systems for arbitrators to be impartial and to apply the rules of natural justice. 

Furthermore, I had thought that customary arbitration would operate almost in isolation from the court system, but in fact the two are closely linked.  Customary awards can be registered at court and can be enforced in the same manner as a court judgment.  Parties can apply to the District, Circuit, or High Court for a customary award to be set aside.  Awards made in customary arbitrations are binding and any attempts to resurrect the issue in court will be struck out under the principle of res judicata.   

Many of the provisions in the ADR Act 2010 simply codified existing practice, such as the giving of a token (money or some strong drink) to signify acceptance of the arbitration.  The Act can therefore be interpreted in two contrasting ways: as the imposition of legal control over traditional customs - or the acceptance by the legal system of a fait accompli.

Days 15 and 16 - Kumasi High Court

I spent Monday and Tuesday marshalling with Justice Jennifer Dodoo, a judge of the Commercial Division of the High Court in Kumasi.  Here are a few impressions/observations, arising from this and other times spent in court:

·         The Ghanaian courts have a significant problem with delay.  Several cases are dealt with in a short period of time (perhaps half a dozen in an hour), apparently because little progress is made in each one.  The reasons why are multifarious, but common factors are the absence of one or both parties and/or their lawyers, problems with tendering evidence, and difficulties with service.  To give just one example, in a case I watched on Tuesday, the examination-in-chief of the first of only two witnesses started – three years after the case began.

·         Lawyers “talk back” more readily in Ghana (or at least in Kumasi) than in the UK.  I was surprised to see lawyers refusing to attend during the vacation, even though the judge was sitting, and requesting a different time for a case to be heard due to the cheaper price of parking tickets!

·         There is also more “banter” between lawyers in Ghanaian courts than in the UK.  Indeed, lawyers sometimes actually rise to their feet to crack jokes.  The judge’s attitude is generally one of benevolent tolerance. 

·         Examination-in-chief takes very different forms.  In one case I watched, the process was very familiar, with the witness being asked a series of non-leading questions to elicit their story.  In another, the lawyer started his witness off with a few questions, and then the witness narrated his version of events with minimal further intervention from his lawyer who, in fact, sat down for the rest of his evidence.

·         In most Ghanaian courts, the judge has to write down everything which is said in court.  This means that the examination of witnesses and legal submissions progress very slowly, as speech must be almost at dictation pace.

I also spent time sitting in the court of Justice Angeline Mensah-Homiah.  During one case, whilst I was sitting quietly listening to proceedings, Her Ladyship suddenly announced my presence in court and asked me to introduce myself to the bar.  At this, some seven or eight bewigged and gowned lawyers immediately swivelled round to stare at me.  This was somewhat disconcerting.  A little later, after some particularly frivolous comments from the bar, Her Ladyship said reprovingly, “you are honoured to have your sister from the UK observing you.  She will go back and say people talk a lot at the bar”.  “That’s because we are friendlier here,” observed one lawyer. 

Court of Appeal and High Court at Kumasi

I was at Kumasi airport on my way back to Accra when the news broke of President John Evans Atta Mills’ death.  It was a memorable moment: I suddenly became aware of raised voices and a great deal of commotion.  I assumed that a plane was delayed, or something similar, but then everyone rushed to look at a television screen and I realised it was something more serious.  It was amazing to see the rapidity with which events moved once the President’s death had been announced: by half 8 that evening, a national week of mourning had been declared, the campaigning for December’s general election suspended, and a new President sworn in.

Weekend in Kumasi

On Saturday I headed to Kumasi, Ghana’s second city, where I was to spend a couple of days shadowing a High Court judge.

The drive up was itself very interesting.  I was taken aback by how green Ghana is.  My previous experience of Africa – two weeks in Egypt and, um, a day in Morocco – left an overwhelming impression of dust and desiccation, but Ghana is completely different.  The countryside is lush and thickly vegetated - although it is the rainy season, so no doubt it is much drier in other months. 

I was intrigued by an advert we passed while driving through Kumasi, which read in large letters: “Fire is preventable.  So is AIDS.  Take precautions against both immediately”.  This struck me as an admirably efficient use of resources and I couldn't help but wonder what other previously disparate issues could be combined in this way.

I was very kindly welcomed at the home of my host, Kwame, where a meal was already being cooked for me on the outside stove.

On Sunday I visited a few places outside of Kumasi itself.  I was shown around by my host, Kwame, and members of his family:

From right to left: Kwame, me, Kwame junior (Kwame's son), Alex (Kwame's brother), and Linda (Kwame's daughter)

We started off at Lake Bosumtwi.  “Bosumtwi” translates as “fetish antelope” (obviously), a name which comes from the legend about how the lake was discovered.  This is Ghana’s largest natural body of fresh water, situated in a meteor-formed crater and surrounded by forested hills.  

Lake Bosumtwi from above

The shore of Lake Bosumtwi

We then went on the Bobiri Forest and Butterfly Sanctuary.  This reserve harbours some 400 different species of butterfly, approximately 2 of which were in evidence on Sunday: apparently butterflies don’t like the rainy season.  However, we did see some very interesting trees, including one which had split into three:

Finally, we visited a traditional Ashanti shrine (or Obosomfie) at Besease, which houses one of the lesser deities who mediate between humans and the supreme god.  The building dates from around 1850 and it was where the famous Ashanti queenmother Yaa Asantewaa consulted the spirits before attacking the British fort at Kumasi.