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.