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.  

Day 14 - the Legal Resources Centre

On Friday I met with Daphne Lariba Nabila, the Director of Programmes at the Legal Resources Centre.  The Legal Resources Centre is an NGO “committed to the realisation of human dignity by building human rights capacities”.  As the name would suggest, a large part of its work is providing free, or partly free, legal advice and representation.  Any type of case is accepted: most of the casework concerns family law but disputes over land are common as well.  To qualify for legal aid, the client must be sufficiently indigent, although there is no set limit – each case is considered individually.  Even if a client doesn’t qualify for full legal aid, where all legal services are provided free of charge, they may still be able to get partial legal aid, where the expertise is free but the client has to pay filing fees and travelling expenses etc.  The LRC also undertakes mediation, public education campaigns and research projects.

I asked Daphne about the apparently low level of demand for legal aid that I have commented on before, and she cited several factors which I had suspected might be accountable.  These included the availability of other, customary ways of resolving disputes; the fact that some people are simply not aware of legal aid; and the existence of several small(ish) organisations such as the LRC, FIDA, and CHRAJ.  She also informed me that some private law firms do pro bono work.

I also asked about challenges faced by the LRC and was interested to learn that, as with the Legal Aid Board, the problem is not a lack of funding but scarcity of resources.  For the LRC, however, it is a paucity of lawyers rather than of space that is the problem: the LRC used to employ ten lawyers but now has only two.  It seems that there is a significant lack of interest in the profession in working for legal aid organisations, which is of course less well remunerated than private practice.  This suggests that funding is more of an issue than it initially appears. 

  

The Legal Resources Centre

Day 13 - Supreme Court and General Legal Council

On Thursday morning I went to the Supreme Court with Nene Amegatcher, a senior lawyer from Sam Okudzeto and Associates.  

Mr Amegatcher’s case was the last to be heard, so I got to listen to several other matters first.  Today was “constitutional law” day, when the cases which had had to be adjourned last Tuesday due to the absence of a particular justice were heard.  A special panel of seven – and at one point nine – justices was sitting, owing to the importance of the issues.  There is actually little substantive oral argument heard in the Supreme Court: most of the advocacy is through written submissions.  This does not mean, however, that there are not some interesting – and at times entertaining – exchanges.  One of these occurred in a case between the Centre for Public Interest Law and the Attorney-General, and went (roughly) as follows:

Counsel for Attorney-General: My Lords, does the judiciary have the power to question acts of the executive which are done within the law?  That is the issue.

Justice: Are you saying the judiciary has no power of judicial review?

Counsel for AG: No – but when the executive is acting within its powers?

Justice: But that is the question!

I also heard the court giving judgment.  The judgment was read out by one justice, and then the chair of the panel commented on it, giving further explanation and reasons.  The point of law involved was whether or not a mistake in a writ invalidated proceedings: in the circumstances of the case, it was held not to do so.

After the Supreme Court had finished sitting, I went to the Commercial Court where I witnessed an episode illustrating the importance of deference at the Ghanaian bar.  The general principle is that the order in which cases are heard is dictated by the seniority of the barrister.  I had already had some bitter experience of this rule when accompanying a pupil barrister from the Legal Aid Board: despite arriving almost first, we were the last to be called to see the judge.  Today I was with a very senior barrister, Nene Amegatcher, and saw the other side of the coin.  The judge firstly asked Mr Amegatcher’s consent to another case being heard before his, and afterwards ordered the lawyers in that case to remain until Mr Amegatcher’s case was finished “to show deference”.  The lawyers looked rather blank at this, and it was not enforced – but it is clearly an important convention.

In the afternoon I met with Andrew Amegatcher, secretary of the General Legal Council. We had a wide-ranging discussion and he seemed keen to further links between the UK and Ghanaian bars.  Our meeting was at his office at the Ghana School of Law, situated beside the High and Supreme Courts complex.

The Ghana School of Law from the front...

...and back.

In the evening, I went out for a meal with an American intern I’d met at the Supreme Court and some friends of hers (and friends of friends).  It was good to experience some nightlife in Osu - Accra’s trendiest district, according to the authority that is my guidebook.  It was interesting too to learn about other interns’ experiences in Ghana - there was a certain amount of showing off about the strangest foodstuff to have been eaten.  I think the winner was Catrina from America, with wele (the skin of a cow).

The meal in Osu.

Day 12 - FIDA and DOVVSU

Today I visited two different organisations – the International Federation of Women Lawyers and the Domestic Violence Victim Support Unit.

The International Federation of Women Lawyers (FIDA – no, I don’t get it either) is an NGO which, according to their Mission Statement, “is committed to addressing discrimination in society by promoting and protecting the rights of women, children, and the vulnerable”.  Its work includes giving legal advice, conducting mediations, public education, and campaigning.  It addresses issues such as sexual assault, the representation of women in politics, child abuse, forced marriage, slavery, child maintenance, marital problems, and living with HIV (I found out today the shocking fact that 68% of women in sub-Saharan Africa are HIV positive).  Unfortunately, FIDA doesn’t have the funding to take cases on to court.  Lawyers volunteer to give initial legal advice but if a client needs help beyond this, it has to be paid for.

I sat in on a legal clinic, in which a succession of clients were given advice or took part in a mediation.  The cases I observed concerned a family dispute over property, a wife’s entitlement to assets of her late husband, child maintenance, and marital issues.  The mediations took a similar form as those I witnessed at the Legal Aid Board, with first the claimant then the respondent stating their case.  This is an effective, and I believe very widely used, structure, but it is vulnerable to abuse: one party today took it as an opportunity to recount almost everything that had ever happened to him, resisting all attempts to get him to come to the point.  It did also strike me that, despite this very formulaic beginning, after the opening statements there is a danger of the mediation descending into a free-for-all. This tendency is perhaps partly due to the fact that, in Ghana, mediations don’t seem to include private meetings between the mediator and individual parties, as would happen in the UK.  This may be due to time and space constraints, but these private meetings would be useful in providing each party with breathing space and in breaking up what can otherwise be a very lengthy confrontation. 

The FIDA offices

The Domestic Violence Victim Support Unit (DOVVSU) is a unit of the police which deals with domestic violence offences.  I met today with the superintendent of DOVVSU and one of the police prosecutors.  DOVVSU handles domestic abuse cases from start to finish.  Complainants are initially directed to the Complaints Unit; their case is then passed on to investigating officers for preparation; and the brief, or docket, is then presented in court by a police prosecutor.  

It was extremely interesting talking to the police prosecutor.  These officers prosecute all crimes in Ghana apart from rape and murder, which are handled by lawyers from the Attorney-General’s office.  There is no independent state prosecution service, apart from the Attorney-General.  I can appreciate how having the police prosecute crimes may be more efficient, but it seems to me that there are two problems with this system.  Firstly, an independent prosecution service helps ensure that only appropriate cases are prosecuted and provides a check on the work of the police.  Secondly, police prosecutors are not trained lawyers, yet they are doing the work of – and alongside – counsel.  It is surely just as important for the state to be adequately represented as it is for the defendant, but there is a potential imbalance here.

Day 11 - the Cocoa Affairs Court

On Tuesday morning I went to the Cocoa Affairs Court.  Disappointingly, this is not the court which rules on all things chocolate; instead, it contains divisions of the Circuit and High Courts.  The name comes from the buildings in which the courts are housed, which once used to hold the Ministry of Cocoa Affairs.  The (now) court buildings are colonial-era and made of wood, with verandahs and outside staircases.  Despite being obviously rickety, and no doubt a fire hazard, they are rather beautiful and I was sad to learn that they will soon be knocked down. 

Cocoa Affairs Court, Accra

Cocoa Affairs Court, Accra

I was there to spend a morning in the Gender-Based Violence Court, which sits on Tuesdays and Thursdays.  This court was established in 1998 to deal with cases involving domestic violence and sexual offences.  In the two or so hours that the court sat, I watched seven different cases.  A few general points of interest and/or comparison:

·         Each case has a defendant and a complainant.  Slightly confusingly, the complainant is not (or not necessarily) the same person as the victim: the complainant is the person who brought the matter to police attention.  The complainant is expected to be present at each hearing;

·        The layout of the court is such that the defendant and complainant (if the latter is giving evidence) stand in two witness boxes between the bench and the bar.  The effect of this is that when they are being questioned, counsel stands behind them, addressing their backs;

·        The demeanour of counsel is more demonstrative than would be seen in a UK court, with finger-jabbing and a more aggressive tone of voice used.

There were a couple of cases which stood out, for different reasons.  The first was an application for bail for a defendant charged with defilement of his stepdaughter.  The defence counsel began his application by saying that the defendant should be granted bail "as a responsible family man"...!  He also promised that the defendant would “endeavour” to fulfil his bail requirements, a submission that I admired for its realism.  The application was, perhaps unsurprisingly, unsuccessful.  

The second case which was particularly notable involved a German defendant accused of a sexual offence.  As this news story shows, his case had already been adjourned once due to the lack of a German interpreter:

http://nowghana.com/2012/07/04/court-asks-for-german-interpreter-for-paedophile/

Unfortunately, there was no interpreter on Monday either – I know this because I was asked if I was she.

I spent Tuesday afternoon at the offices of Sam Okudzeto and Associates working on a case about disputed interest payments.  It has been going on for several years, which means that legal fees will be many times greater than any eventual award.  I have to agree with Kwame from the Volta River Authority, who said on Monday that his advice to any client is “don’t go to court”.

Women's rights and customary law

Over the last couple of weeks, I have been working my way through a fascinating book called Casebook on the Rights of Women in Ghana.  It was produced by the Ghana Literacy and Resource Foundation in conjunction with the British High Commission.  It is a collection of abstracts of cases dealing with the principal issues affecting women in Ghana and it interests me for two main reasons: firstly because it is (unsurprisingly) very informative on the state of women’s rights in Ghana, and secondly because it sheds light on how the court has responded to customary laws in an age of increasing human rights awareness.

A few examples on the state of women’s rights in Ghana: abortion is illegal here, except to preserve the life and health of the mother, or where the pregnancy was a result of incest or rape, or where there is a substantial risk that the child may be born with a significant abnormality.  These are potentially quite broad grounds, but safe abortions are apparently still quite difficult to obtain and unsafe abortions remain a serious problem.  This seems to be at least partly due to problems of perception: indeed, when I asked two Ghanaians at the law firm (both young and female) whether abortion was legal, one thought it was illegal unless the mother's life was at risk and the other simply didn't know.  Traditional practices such as FGM, early marriage, and widowhood rites have been criminalised, but enforcement is apparently “slow and piecemeal”.  Women’s rights to property after divorce seem to depend on whether the marriage was customary or by ordinance: if the latter, it will be governed by similar principles as in the UK but if the former, most traditions seem to dictate that, unless the wife has made a significant financial contribution, she will not be entitled to her husband’s property. 

Turning to the court’s reaction to customary laws: three cases from the book demonstrate the diverse approaches taken by the court to those customary laws which have become more difficult to justify in an era increasingly conscious of human rights.  

The first case, Tanar & Another v Akosua Koko [1974] 1 GLR 451 CA, considered the customary rite dipo: this was a Krobe ritual which had to be undergone by the girl on reaching the age of puberty and before becoming pregnant: if a girl became pregnant before dipo, she was liable to be ostracised, disowned by her parents, and banished from her home.  The court took a hands-off approach, Archer JA stating that “whether the custom should be abolished or not, is not for the courts to say.  If the Krobes wish to preserve this custom...it is a matter for the Krobes themselves.  In any case, I am indifferent”. 

The second case, Atomo v Trekpetey [1980] GLR 738, concerned an Osudoku custom whereby when a woman has been given in marriage to a fetish priest, all the children born to her during and after the lifetime of the fetish priest are considered the children of the fetish priest and not of their natural father.  The court took a much more robust approach in this instance, holding that there was no reasonable basis for the custom and it was in fact repugnant to natural justice, equity, and good conscience. 

The third case, Akorninga v Akawagre [1987-88] 2 GLR 562, CA, concerned a Frafra customary law whereby on the death of a husband, his successor or brother may take his widow as his wife, with her consent.  The respondent was arguing that the appellant was his wife under this law, even though the husband’s family had abandoned her at the time of his death, the appellant had married again, and the respondent only emerged to claim her 11 years later.  The court held, taking a different approach again, that his claim was wrong because contrary to Frafra customary law – as well as the general law of the land, as it sought to treat the appellant as a chattel. 

The issue of women's rights has therefore repeatedly forced the court to grapple with problematic customary laws - and women's rights illustrate the development in the court's response to such laws, from declaring that the custom was not their business, to roundly condemning it, to upholding it but criticising its application.

Day 10 – Sam Okudzeto & Associates and the Volta River Authority

I spent Monday morning at the office of Sam Okudzeto & Associates and in the afternoon went to the head office of the Volta River Authority (VRA) to meet with a lawyer there.  This organisation is responsible for the huge amount of energy produced by the damming of the Volta River.  I was interested to hear about the diverse ways in which this responsibility is fulfilled: for example, the VRA has established a number of townships, complete with schools and social clubs, for its workers.  As can be imagined, the work of its legal department is diverse – but this seems to be a feature of the Ghanaian legal system more generally.  There isn't the same pressure to specialise here as there is at the UK bar. 

The lawyer I was meeting, Francis Yalley and his colleague – also a lawyer – Kwame, very kindly took me for lunch at the Movenpick Ambassador Hotel.  We had a fascinating and very informative conversation about the VRA, Ghanaian law, and – slightly more off-piste – the Ashanti kingdom.  I asked what they considered to be the main problem facing the Ghanaian legal system and the unanimous answer was delay: I was told of one case on land law which has been going on for 22 years!  (Very Jarndyce v Jarndyce.)  They also mentioned the expense, which is exacerbated (for the successful party) by the fact that, unlike in England, the winner will usually only get a fraction of his/her costs.  

They were also keen to ask me questions about the law in the UK, including where the BPTC is taught, what legal aid is like, and what the purpose is of the Inns of Court.  I always find this last question difficult to answer, and in the end justified my uncertainty by pointing out that the Council of the Inns of Court is currently offering a prize for an essay on the question The Inns of Court, where next and why?.  

Days 7 and 8 - the Legal Aid Board

On Wednesday and Thursday I returned to the Legal Aid Board (LAB).  The mornings of both were spent mainly in the District and Juvenile Courts, which furnished a striking contrast to the Supreme Court.  The building that housed the courts was, unsurprisingly, much more modest: simply four courtrooms in a row, all opening onto a long verandah which ran the length of the building.  The waiting area was a raised platform with a roof situated outside the court building. 

I was also taken to see the police unit on site.  It was a few moments before I noticed that two men were imprisoned in a cell in the corner – for not paying maintenance, I was informed.  The cell was extremely basic, being simply a small room with a barred door opening onto the main police office, so I was relieved to hear that they would be there only temporarily.  However, when later on I asked some questions about prison standards in Ghana, I was told that in permanent prisons there would be many prisoners in a cell of the same size, with few or no more facilities.  Overcrowding is apparently a significant problem, one which stems partly from the fact that, other than fines, there are no other punitive options available to the courts: community orders, for example, do not exist.

The District Courts deal with all manner of cases – in the short time I was there, I saw cases involving questions of debt, landlord and tenant relations, intestacy, property, and family disputes.  There was much to admire in the way this diverse caseload was handled by the judge, often without the benefit of lawyers (indeed, the number of litigants representing themselves goes some way towards answering the questions raised in my previous blog post about the apparent absence of demand for legal services).  Although much of what occurred would probably constitute an “irregularity” – and a ground for appeal – in the UK, here it seemed a commonsense reaction to circumstances.  For example, at the end of one case, a rather sad dispute between sons and their father, the judge delivered what can only be described as a homily, urging the parties to get along.  It clearly came from the heart, and was quite personal - and deeply religious - in tone.  For someone accustomed to the careful formality of the UK courts, it was startling, but somehow refreshing.

What appeared to me to be the biggest problem facing these courts was absenteeism.  This was especially obvious on the Thursday morning.  In the first case I observed, it was the witness who was due for cross-examination who wasn’t there; in the third case, it was the defendant; and in the fifth case, it was the defendant’s lawyer.  This is perhaps the other side of the coin of the more relaxed approach described above.  I also wondered whether the problem was exacerbated by the fact that, in Ghana, the practice for calling witnesses is for each witness to be given a specific time to appear.  In the UK, in contrast, all witnesses are asked to come along at the beginning, and then wait their turn.  This latter approach does of course waste much time of many witnesses – but with the former approach, it is the court’s time that is wasted when the appointed witness is absent and there is nothing to do but adjourn.

On both days, I was very kindly treated to a local lunch by Abu Issah, the LAB’s lawyer.  On Wednesday we had chicken and rice at the National Theatre, and on Thursday we had kenkey, which is a sort of dumpling made of ground maize wrapped in a corn husk.  Sadly this last didn’t agree with me (to the extent that there won’t be a blog post on Day 9, as I spent most of it in the local clinic on a drip...).

The afternoon of both Wednesday and Thursday were spent at the LAB’s office.  On the Wednesday, I observed another mediation – in which, rather to my alarm, I was introduced as “co-mediator”.  I felt it was probably best to keep my co-mediating to a minimum, never having attempted it before.  On the Thursday, I sat with Abu watching him deal with a dizzying succession of clients.  As with the District Courts, he was presented with a diverse range of problems and I was impressed by the ease with which he moved between cases on land, crime, family, and the armed services. 

I very much enjoyed my time at the Legal Aid Board, and am particularly grateful to Abu for taking such trouble to show me all the different aspects of his work. 

Me with Abu Issah, the LAB lawyer.

Day 6 – the Supreme Court

On Tuesday I paid my first visit to the Supreme Court, pictured here:

  

The first (and indeed only) case heard was an application for a motion to stay the execution of a judgment pending appeal.  The panel of five judges heard approximately forty-five minutes of argument.  I was struck by the forceful manner in which the judges questioned the lawyers and the direct criticism they meted out.  It was therefore something of a surprise afterwards when one of the lawyers observed how “nice” the panel had been that day.  

Afterwards I went briefly to the Commercial Court.  The case I was there to see was adjourned, but I did have the advantage of hearing a novel argument on costs.  The presiding judge had just given his decision, and asked counsel if there were any submissions as to costs – ie, any arguments on whether either side should be awarded their legal expenses.  He added, giving some indication of his thinking on the matter, that the defendant – the losing party – should have capitulated much earlier as his case was a weak one. 

The defendant’s lawyer stood up to argue the matter.  He began by demonstrating admirable realism with the words, “if your Lordship decides to give judgment against us”.  At this point he was interrupted by the judge reminding him that judgment had already been given against him.  This point was graciously conceded by the lawyer.  He then proceeded to state that, despite the defeat, costs should not be awarded against his client, “because one way or another, we have helped to develop the law”. 

Unfortunately, the judge did not appreciate the magnanimity of the defendant’s unselfish commitment to the expansion of legal knowledge: instead, words were stated to the effect that there was no new point to the defendant’s case whatsoever and it was entirely without intellectual interest.  The argument failed. 

Day 5 - Legal Aid Board

On Monday I went to the Legal Aid Board.  Legal aid is an entirely different creature here from legal aid in the UK.  In the UK it is, broadly speaking, a system of funding cases whereby the legal fees and expenses of those who cannot afford to pay for it themselves are paid for by the government.  Any lawyer can undertake legal aid work and be paid for it by the state via the Legal Services Commission.  In Ghana, the Legal Aid Board (LAB) appears to be more like a small charity or NGO: rather than simply funding cases, the LAB actually conducts them, and furthermore a major part of its work is providing mediation services.  Legal representation is only provided to those earning less than 500 cedis (approximately £160) per month, but mediation is free to all.  Unlike in the UK, legal aid is not restricted to certain areas of law and the LAB handles cases ranging from crime to insurance to intestacy.  Indeed, some of the cases taken on would hardly be recognised as “legal”: for example, one woman’s complaint was that her husband had lost interest in their marriage.

As stated above, mediation is a large part of the LAB’s work.  Every case that comes to them is mediated by in-house mediators, unless it is already in front of the courts or is eminently unsuitable for mediation.  I witnessed two mediations, both conducted by the same mediator.  The first was extremely successful, with a mutually acceptable resolution being reached within about half an hour.  The second was more tempestuous and, after more than an hour of heated exchanges, was adjourned to allow tempers to cool. 

Almost a fifth (18%) of all cases are settled at the mediation stage with only slightly more (22%) going on to receive legal advice and representation.  What is surprising is that more than a quarter of cases (28%) are closed due to a lack of response from the applicant after the initial enquiry.  This brings me back to my last blog post: it seems to suggest that, even amongst those savvy enough to get legal assistance, demand for free legal help is still relatively low.

The paradox of legal aid in Ghana

The Legal Aid Board for the whole of Greater Accra, which constitutes some three million people, employs only two lawyers - and one of those is on secondment from the Attorney General’s office.  However, the office is not overrun with people seeking help, few of those who do require legal assistance are turned away, and indeed, for much of the day the office seems rather quiet.

This was the same thing that struck me when I was at the Commission on Human Rights and Administrative Justice: where is everybody?  When I volunteered at a west London law centre, we were inundated by people requesting help and received far more cases than we could possibly handle.  And yet here, where there is an apparent paucity of free legal representation, the demand appears to be low – satiable even by the minimal provision which exists.  How can this be so?  These are my initial hypotheses:

1) Demand is low because supply is low – people know that free legal advice and representation is not readily available, and perhaps believe it to be even scarcer than it is, and therefore simply do not seek it out.

2) The demand is dispersed and thus invisible: there is a multiplicity of NGOs and charities in Ghana which provide some sort of help in the legal field and needy applicants are divided up between them.  There is therefore no way of assessing the real need.

3) The demand is dispersed and, in that way, satisfied: this multiplicity of NGOs and charities manages to meet the demand for legal assistance, albeit in a more haphazard way than that to which we are accustomed in the UK.

4) Demand is low: problems and disputes are solved through informal and/or customary channels such as chieftaincies and people do not need/want formal legal assistance.

I plan to visit many more organisations during my time in Ghana; hopefully as I gain more experience of legal provision I will be able better to explain – or explain away – what strikes me presently as a very strange incongruity.

University of Ghana and the National Museum

On Saturday morning I went to the mall, which is full of Western products and is evidently a haven for expats. I stocked up on branflakes – I’m doing my best to try the local cuisine, but not at 7 in the morning.  In the afternoon I went with Ben (who works at the house where I am staying) for a very refreshing swim at the Erata hotel and to visit the University of Ghana.

The university is set in a beautiful campus in Legon, Accra.  The library is a much more inviting place to study than the rather forbidding UL at Cambridge:

Even the roundabouts feature inspiring statues:

The university also has lovely and very interesting botanical gardens (featured is Ben, sporting his latest footballing injury):

But I can’t deny that the highlight for me was making the acquaintance of this monkey:

I would describe my stance as “poised for flight” - I wasn’t quite sure of the length of the rope which tied the monkey to the tree.

Today (Sunday) I visited the National Museum.  This is a really fascinating collection of artefacts, displays, and photographs of Ghanaian cultural life.  It includes weaponry, cooking equipment, ritual objects, textiles, and musical instruments.  I certainly learnt a great deal on my visit, but was slightly disappointed by the unquestioning attitude taken by the museum towards the slightly more problematic aspects of Ghanaian culture.  For example, the information on the display of puberty initiation rites stated simply that “it is...a great source of pride, honour and joy [to] a family to have their girl initiated”.  In fact, these initiation rites are sometimes contentious, as breach of them can lead to a girl being harshly punished: there have been cases in the Ghanaian courts challenging these rituals as a violation of human rights.  In my opinion, one of the facets of Ghanaian culture which is most to be celebrated is the ability and willingness of that culture to challenge itself, as I saw this week at the Commission on Human Rights and Administrative Justice.  It's a shame this is not reflected in an otherwise fantastic collection.

Day 4 – the British High Commission, takeovers and mergers, and snow

Friday started early, as I not only had to leave time for the Accra traffic as usual, but also wanted to fit in a visit to the British Commission before work.  After a false start, when I mistakenly went to the visa section rather than the Consul and thus wasted some time patiently queuing for a British visa, I found myself in the right place - with half an hour still to go before the Commission even opened.  I passed my time chatting with the (Ghanaian) security guard, who was very friendly but didn’t shy away from awkward questions:

“Are you doing any travelling when you’re in Ghana?”

“Yes, I’m hoping to go to Cape Coast and maybe Mole National Park.”

“Cape Coast – to see the forts?”

“Yes.”

“Where your ancestors enslaved my ancestors?”

“Um....yes.”

There isn’t really a good answer to that one.

The day was spent at the offices of Sam Okudzeto & Associates, the law firm at which I am based.  In the morning I typed up a statement of case in a contractual dispute which was going to arbitration and in the afternoon I was given the Ghana Code on Takeovers and Mergers to read.  My task was to find and note down all the provisions which impose obligations on buyers and/or sellers during the takeover process.  The lawyer for whom I was doing the work said that she had been through it herself, but wanted someone to “take a fresh look”: as this was almost my first experience of company law, “a fresh look” was probably the one thing I could have guaranteed providing.

On Friday afternoons the firm’s office meeting is held.  This is an opportunity for the lawyers to discuss all the cases which were in court that week or are to come to court the next week.  I doubt whether such an event in that precise form would be possible in a chambers at home, where barristers are of course individually responsible for their own cases and therefore not likely to have much knowledge of their colleagues’ work, but it did strike me that setting aside a time every week for members to come together and discuss any issues arising from their cases could only be a good thing – perhaps it does indeed happen in some sets.  I was interested to note that the meeting began and ended with a prayer: religion really does figure much more prominently in daily life here.  I’m not sure such a proceeding would even be legal in the UK (R (National Secular Society) v Bideford Town Council)!

I got a lift home in a taxi with a chatty driver named Christopher.  He wanted to know where I was from (“England”) and whether that was a long way away (“very”).  He was also absolutely fascinated by snow and asked me if I had seen it (yes), whether I had any pictures of it on my phone that I could show him (unfortunately not), and whether there would be snow in England at the moment (from the summer we were having before I came away, quite possibly).

I also found out on Friday that I passed the BPTC: a very nice end to a fantastic first week in Ghana.

Days 2 and 3: the Commission on Human Rights and Administrative Justice

I spent yesterday and today at the Commission on Human Rights and Administrative Justice (CHRAJ).  This organisation, according to its most recent annual report, “exists to protect fundamental human rights and to promote good governance in Ghana”.  It has a mandate to act in three areas: human rights; administrative justice; and anti-corruption.  Its activity within these areas falls into two main categories: firstly, the investigation and resolution of complaints and secondly, public education.

On Wednesday morning I was taken to court.  I watched, among other matters, a couple of applications for bail: the main differences from applications for bail in courts at home (or what I have learnt of them on the BPTC – not necessarily the same thing) were firstly, the complete absence of a prosecutor and secondly, a greater emphasis on the facts of the case itself, rather than just the circumstances of the defendant.  I also watched the judge deal unsympathetically with an absent party: “he is caught up in traffic? I am caught up in malaria fever and I am still here!”

The rest of Wednesday and all of Thursday were spent in the Complaints Unit.  This department receives all incoming cases.  These will be either written down by the complainant himself or by a member of the Complaints Unit who interviews the complainant.  It is then decided at a meeting whether or not the complaint will be accepted.  The main difficulty faced by this department is not an excess of cases: rather, it is that many of the problems they receive cannot be taken on because of the limits placed by CHRAJ’s constitution on admissible complaints.  The main criterion is that cases must fall within one of the three mandates, but in addition cases cannot be accepted if, for example, it is against an international organisation, or has not been brought within a year, or is a criminal matter.    

The types of cases received by CHRAJ vary widely: common topics are child maintenance and/or custody, employment disputes, discrimination, education, false imprisonment, and fraud.  CHRAJ also receives a number of more unusual complaints, such as from women accused of witchcraft.  I was told by the head of the Complaints Unit of the existence in Ghana of “witch camps”: camps where women accused of being witches live, ostracised from their communities and maintained largely by NGOs.  Apparently there are 3 or 4 such in the country.

The lessons learnt from CHRAJ, however, were not only of a legal nature: I was also taught by a friendly employee how to use a tro-tro.  Tro-tros (tro-troes?) constitute Accra’s public transport system: rickety minibuses that follow mysterious routes and pick up passengers in a manner incomprehensible to the uninitiated.  Unfortunately, I doubt the knowledge I have acquired will be of general application, as each tro-tro seems to obey its own rules: but I do at least now know how to get from CHRAJ to where I am staying for 23 pence.

Day 1: the Commercial Court and the Ghanaian legal system

The first day of my internship started inauspiciously, with torrential rain and a no-show by my taxi driver. Despite these setbacks, I managed - thanks to a lift from my host Odette - to reach the centre of Accra in good time. I briefly visited the Commission on Human Rights and Administrative Justice (more of which tomorrow) but most of the day was spent with the law firm Sam Okudzeto and Associates, with whom my internship was organised.

In late morning I was taken to the Commercial Court with two of the lawyers from the firm to attend a pre-trial settlement conference. As this was the fifth pre-trial settlement meeting, I suspected that the chances of actually settling would not be high, but progress was in fact made. Although initially I was struck by the similarities between the Ghanaian system and the English/Welsh one, the differences grew more striking the more time I spent at court. Statements of case seem, for example, to be at once more emotively worded and more archaically phrased. Moreover, the essence of the case itself - a question of to whom legal fees should be paid - would be unlikely to arise in English law. I was also struck by the frankness of the signage in the court building, best illustrated by the posters warning visitors not to offer bribes to court staff.

After lunch at the British Council (the menu was local; the prices were not) with the firm's current pupil, Melisa, I returned to the office and spent most of the remainder of the afternoon reading up on Ghanaian law. In Ghana, there exists a dual system of law wherein the received English common law and equitable doctrines co-exist with local, customary laws. The interaction of these two sources of law is perhaps best illustrated in the institution of marriage, of which there are two types in Ghana. The first, "legal marriage", is formalised through a ceremony in a registry office. It is bound by familiar rules such as no polygamy and can be dissolved by divorce. The second, "customary marriage", is formalised through some sort of exchange (of kola nuts in the Kossena area, for example, and drinks in the Akan tribe) and, for the man, can be polygamous. Both forms are equally valid types of marriage although, as Melisa explained, customary marriage is increasingly undertaken as an engagement preceding a legal marriage.

I also found civil procedure to be an unexpected source of interest. The Civil Procedure Rules are, to anyone not familiar with them, a set of rules governing how civil cases are to be conducted. They can at best be described as dry. It was therefore something of a surprise to read in the Ghanaian High Court Civil Procedure Rules, in the midst of the familiar injunctions on multi-party actions and default judgment, that "the occupant of a stool or skin...may sue and be sued on behalf of or as representing the stool or skin", (the occupant of a stool or skin being the chief of a tribe). A little later on came the rule detailing how to serve documents on a chief, an issue which I doubt was considered by Lord Woolf in drawing up his reforms.

A fascinating start to the internship - it was just a shame that the taxi broke down on the way home.

First impressions

I arrived at Kotoka airport, Accra late on Saturday night. The journey itself was uneventful, although I was slightly disconcerted when my fellow passengers applauded our safe landing in Ghana. I can only hope this was out of politeness and not because landing without incident is worthy of note.


I am staying in the family home of HHJ Barbara Mensah. When I arrived at the house, I was immediately made to feel at home - not only because of the very kind welcome given to me by my host, Odette, but also because Wimbledon was on the television. I stayed up to watch Murray secure his place in the next round, then went to bed.

On Sunday I settled myself into my new surroundings and had a little walk around the neighbourhood. Although suburbs are not usually the most fruitful place for wildlife watching, almost all the birds, butterflies, and plants that I saw were new to me. I won't name them, mainly because I can't, but even the crows look different.

Today (Monday) is a public holiday so I went into the centre of Accra with Ben, the house manager. We had intended just to visit the Arts Centre but - unfortunately for Ben - I couldn't help wanting to stop and look at almost everything we passed and by mid-afternoon we had visited many of Accra's sights.

These included Independence Square, a huge space with Soviet-style monuments:

It is used for parades on the anniversary of Ghanaian independence, but today was peopled only by groups heading for the beach beyond it. We soon followed them:

Afterwards, we headed (via Parliament Building) to Jamestown, an area of Accra full of small markets and colonial-style houses.  It also has a lighthouse which it is possible to climb. Despite having no head for heights, I was keen to do this: my enthusiasm, however, palled at about the same time as the spiral staircase gave way to a rather rickety ladder. Despite this, we carried on and were rewarded by fantastic views from the top:

Safely at the bottom again, we visited the harbour and its environs. This was a fascinating, bustling area: we passed stalls selling shark, men building new boats out of single tree trunks, children swimming in the harbour, and a boat named after a certain Portuguese footballer:

It was great to have the opportunity to look round Accra before starting my internship, especially with such a friendly guide as Ben, but I'm really looking forward to getting started tomorrow. Wish me luck on the commute!