General Legal Council versus Social Media: Weeping over fake news?

 

The General Legal Council (4)


A: Introduction

Last Sunday, when I saw a publication to the effect that the General Legal Council (simply, “the Council” or “GLC”) was about to introduce a policy requiring lawyers to write examinations before their practicing licenses would be renewed, I believed it. I did not need to read the full story to believe it. I had no cause to doubt it at all. I mean, it was this same Council that had proposed in a bill before Parliament, - circa 2018/2019 - that lawyers who appeared before its Disciplinary Committee would undergo mandatory psychiatric examination if the Committee members found the lawyers were not fully in shape in their minds. It was the Committee members who were proposed to undertake the preliminary psychiatric assessment. After the Committee’s psychiatric assessment, the “mad” lawyer was then to be referred to Asylum, Ankaful, Pantang, ‘Onyame pε agorͻ’ Prayer Camp or ‘Sika Gari’ Shrine to begin the healing process. In the meantime, the all-sane-all-lawyers/judges Disciplinary Committee would suspend the lawyer’s license until further notice or until the lawyer presented a clean bill of mental health, whichever came first.

When the draft proposed Disciplinary Committee Rules came out, lawyers who heard about the proposed insane provision on insanity laughed it off as a big joke till they saw it live and coloured in the bill. The laughter evaporated from their lips. They realized the GLC meant business. The GLC did not issue any press statement to disassociate itself from the insanity provision nor the bill itself. Thank goodness, Parliament saw through the insanity therein and ensured the bill’s stillbirth. With such a rich history, one could hardly doubt the authenticity of the examination-for-license statement recently attributed to the GLC. 

B: Welcome to the 21st century news media

3rd May, 2023 marked the 30th anniversary of the United Nations’ World Press Freedom Day. There were a couple of activities organized by some of the UN agencies in Accra to commemorate the day. Ghana Journalists Association also reportedly did something to mark the day. Of course, the day’s activities couldn’t have ended without a sound bite or two on Ghana’s dwindling position on the world’s press freedom ranking. What one did not hear about on World Press Freedom Day was the scourge of fake news. One got a sense that in Ghana, we may have our problems – and plenty of them – but we have been vaccinated against the killer virus called fake news.

As it turned out, after we finished celebrating press freedom, the GLC did not sleep a wink over the 6th & 7th May, 2023 weekend. The GLC had learned, rather belatedly, that social media was no one person’s bona fide property. And that, it was for every person who chose to live on it. The GLC wished we were still in the 1960s where they could have called whichever newspaper that wrote the ‘fake’ story line to burn it before it even came out. If only wishes were horses. Sorry, guys. This is a new era. He who thrives on fake news, dies from fake news.

Realizing that the horse had already bolted from the stable, the ‘techies’ embedded within the legal profession, for once, decided to tell truth to power. They realized other ‘techies’ are smarter and faster than them on the ‘net and had beaten them at their own game. The news was out. Lawyers read it and they were mad. This is the time the GLC’s stillborn ‘mad lawyer provision’ would have come in handy. The techies-for-favours had no choice but to convey lawyers’ anger and threats of mayhem to the GLC. In fact, some lawyers are alleged to have formed their own committee to run an ‘examination-for-promotion-or-demotion’ for all judges, starting from the Supreme Court. “Examination begat examination, that’s all,” they allegedly rationalized. 

Being aware of the ominous saying that ‘last days are dangerous,’ the GLC decided to show its ‘human side.’ It personally issued a press statement, saying that its Chairman never said anything about any impending exams-for-license regime for lawyers. To assure lawyers that ‘to err is human,’ GLC personally signed the press statement dated 8th May, 2023. Curiously, the GLC decided not to use its blue logo - ‘εpa’ - displayed on its website. It chose rather to dig into the archives and retrieve the 1960-designed and discarded reddish-pink logo to use for the press statement. 

Additionally, though the general public wouldn’t care a pin head whether lawyers wrote exams for their license or not, GLC’s press statement ‘apologized’ to the general public as well. To err is really human! For good measure, the GLC’s press statement is not on its own website. At the end of the day, the silver lining in the GLC’s sleepless-nights-induced press statement turned out to be the GLC’s own disclosure of its membership. For that, we are eternally grateful.

C: A tale of three Councils: The axis of illegality

  • The General Legal Council created by law

The GLC is a creature of statute. Pardon the legalese: the GLC is a body set up by law. The law that set up the GLC is the Legal Profession Act of 1960. For the avoidance of doubt, the persons who constitute the governing body of the GLC are specifically set out in the law as follows:

  1. “the chairman (the Chief Justice);

  2. the deputy chairman (the most senior of the other Justices of the Supreme Court); 

  3. the two most senior Justices of the Supreme Court after the chairman and the deputy chairman referred to above;

  4. the Attorney-General;

  5. the Head of the Faculty of Law at the University of Ghana;

  6. three persons nominated by the Minister; and

  7. Four members of the Bar elected by the Ghana Bar Association.” (Emphasis in bold added) 

By simple mathematical calculation, the law provides for 13 individuals as the maximum number of persons on the governing body of the Council. Most notably, the members representing the Ghana Bar Association are to be elected. 

  • The General Legal Council created by the General Legal Council

Now, in the GLC’s press statement under reference, the GLC was magnanimous enough to set forth in full the persons who constitute the Council as follows:

  • “The Chief Justice who is the Chairman

  • A Deputy Chairman who is the most Senior Supreme Court Judge after the Chief Justice 

  • The two most senior Supreme Court Judges

  • The Attorney-General

  • the Head of the Faculty of Law at the University of Ghana

  • Three persons nominated by the Minister who are all members of the Bar

  • Four members of the Bar who are nominated by the Ghana Bar Association.” (Emphasis in bold added)

On the face of it, this list supplied by the GLC itself does not seem different from what the law provides as captured in the preceding paragraph. But a close scrutiny shows a disturbing departure from the law. First of all, the law only states that the Minister must nominate three persons to the GLC. The law does not restrict how wide the Minister must cast his/her net to fish for the three. However, the GLC has added an additional requirement that, the three must be persons “who are all members of the Bar.”  

Secondly, - and of much greater import - under the law, the GLC governing body must include “four members of the Bar elected by the Ghana Bar Association.” But the GLC has now illegally changed the requirement from four elected members of the Bar to “four members of the Bar who are nominated by the Ghana Bar Association.” There is a world of difference between ‘election’ and ‘nomination.’ An election is a process in which people vote to choose a person or group of people to hold an official position. On the other hand, a nomination is an official suggestion of someone as a candidate in an election or for a job. 

The law provides that members of the Ghana Bar Association must exercise the right to choose the persons they want to represent them on the GLC through elections. It is the generality of the Association who must decide who can best represent their interests. The framers of the law knew, as far as 1960, that the best way to ensure lawyers had a say in their representation on the GLC was through elections. Thus, the framers made it the law. From research on the subject and the various amendment made in the law from 1963 to date, there is no law amending Act 32 to state that the GBA representatives on the GLC must be nominated. In the circumstances, it is submitted that any GLC governing body that is constituted by nominated – and not elected – members of the GBA is void. Thus, it is a nullity and of no legal consequence. As Lord Denning famously proclaimed in MacFoy v United Africa Co. Ltd, “if an act is void, then it is in law a nullity.  It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Let us now consider the governing body of the GLC as it stands today.

  • The General Legal Council that exists in practice

So far, we have been presented with two differently constituted GLC governing bodies, so to speak. The governing body as provided under the law is different from the governing body that the GLC itself has presented to the whole world through its press statement. We now examine the governing body of the GLC as it is currently constituted. This will reveal whether the GLC currently in being is legally constituted or not.

The current membership of the GLC governing body as published on the Council’s website is constituted by the following persons:

 “HIS LORDSHIP JUSTICE K. ANIN YEBOAH (Chief Justice)   -    Chairperson

HON. JUSTICE VICTOR JONES DOTSE          -              Justice of the Supreme Court

HON. JUSTICE PAUL BAFFOE BONNIE           -              Justice of the Supreme Court

HON. JUSTICE GABRIEL PWAMANG           -                Justice of the Supreme Court

HON. JUSTICE PROF. NII ASHIE KOTEY       -         Justice of the Supreme Court and Chairman, IEC

HON. MR. GODFRED YEBOAH ODAME (sic)  - Attorney-General and Minister for Justice

PROF. RAYMOND A. ATUGUBA    -    Dean, University of Ghana School of Law, Legon

MR. YAW ACHEAMPONG BOAFO     -        National President, Ghana Bar Association

MR. K. AMOAKO ADJEI       -            National Vice President, Ghana Bar Association

MR. ALFRED TUAH YEBOAH -      Deputy Attorney-General and Minister for Justice

MR. CHRISTOPHER ARCHER           -                              Private Legal Practitioner

MR. JUSTIN AMENUVOR                     -                              Private Legal Practitioner

MR. KWAKU GYAU BAFFOUR   -                              Ghana Bar Association, Accra

MR. AMOAK AFOKO     -                                     Ghana Bar Association, Accra (sic)

In attendance are:

FRANKLINA GISELA ADANU                    -                   Counsel, General Legal Council

JUSTICE CYNTHIA PAMELA ADDO     -               Secretary, General Legal Council

MR. YAW D. OPPONG           -                        Director, Ghana School of Law, Accra

DR. ERNEST OWUSU DAPAA     -                 Dean, Faculty of Law, KNUST, Kumasi

MR. ISIDORE TUFFOUR             -                     Dean, Faculty of Law, GIMPA, Accra”

This published list of persons who constitute the governing body of the GLC makes startling reading. In the first place, the names that appear under ‘list of council members’ are fourteen (14), instead of thirteen (13) as stipulated under the law (Act 32). From the list, Mr. Justice Prof. Nii Ashie Kotey’s presence on the GLC is not sanctioned by law. The law provides for four (4) Justices of the Supreme Court under established criteria. Justice Kotey is the 5th Supreme Court Justice on the GLC and his designation as ‘Justice of the Supreme Court and Chairman of the IEB’ is unknown under Act 32. Only Justices Yeboah, Dotse, Baffoe-Bonnie and Pwamang qualify to be members of the GLC as Justices of the Supreme Court. In the premises, the GLC as currently constituted is illegal and in breach of Act 32. Therefore, any decision taken by GLC is null, void and of no legal effect. As the Supreme Court has held time without number, anything done in breach of a substantive statute (law) is a nullity.

Secondly, the four individuals on the Council with the designation ‘Ghana Bar Association’ against their names are known to be members of the Executive Committee of the Bar. However, it is not known when, where and how any elections were organized by the GBA at which the four members of the Association were “elected” to represent the Bar on the GLC. Having managed to find themselves on the GLC, one may assume that they were “nominated” unto the GLC in keeping with the GLC’s own understanding of the membership of its governing body, and in clear breach of Act 32. As previously noted, once the law itself stipulates that the four representatives of the GBA on the GLC must be elected, any such representation done in breach of the law is a nullity.

Perhaps, the most ridiculous of all the illegalities associated with the current GLC is the toy called “in attendance.” Act 32 does not state anywhere that some individuals must be ‘in attendance’ when the governing body meets or however the ‘in attendees’ might make themselves useful. It is unclear what role these illegal, permanent-in attendance-members play since there is no role created for them under the law. In fact, it is unknown by what criteria the five “in attendance” persons were selected and published for the world to know that they are ‘in attendance.’ Needless to say, their presence on the GLC is alien to the law (Act 32). 

The Judicial Secretary’s “in attendance” status is even more interesting. Under the law, the Judicial Secretary is the ‘errand’ person for the GLC. The role is purely administrative. Thus, in the wisdom of the Parliament that passed the law, the Judicial Secretary was not made a member of the governing body of the GLC. At any rate, the current Judicial Secretary is still an employee in active service as Judicial Secretary. At least, as at 1st May, 2023, she was employed as such. The Judicial Secretary is also said to be a Court of Appeal Judge and reportedly sits as such. Act 32 does not provide for a Judicial Secretary or a Court of Appeal Judge as a member of the GLC. Thus, the Judicial Secretary cannot slither onto the GLC through the illegal device known as “in attendance.” 

The Director of the Ghana School of Law is not a member of the GLC. In fact, the school was set up in 1958 before Act 32 was passed in 1960. But in spite of the school’s prior existence, its director was not made a member of the GLC governing body. The reason may not be far-fetched when one considers the fact that the Director of Ghana Law School is only an employee of the GLC as was held by the Supreme Court in Bimpong-Buta v General Legal Council & Others. In the result, the Director is not a Council member and thus, cannot illegally tag along as an “in attendee.”

 As for the designations known as ‘Counsel, General Legal Council, ‘Dean, Faculty of Law, KNUST, Kumasi’ and ‘Dean, Faculty of Law, GIMPA, Accra,’ they did not exist at the time Act 32 was passed in 1960. There is also no data to show that Act 32 has been amended to grant them any ‘in attendance’ or other status at the GLC. It is unclear how they came to be ‘in attendance’ at the GLC. They are simply unknown to the law that created and regulates the GLC. It must be added, though, that the Deputy Attorney-General and two other lawyers who are members of the GLC appear to have been nominated by the Attorney-General in accordance with Act 32. 

This above all: there is not a single female among the membership of the GLC governing body. It may be asserted without fear of contradiction that, it is not possible in the year 2023 for a publicly-funded institution in democratic Ghana to be constituted exclusively by men, without a single woman on it. How sad.

D: Professional development of lawyers: Whose responsibility is it?

  • Historical background on creation of GLC and GBA

Research has shown that the General Legal Council and the Ghana Bar Association were never intended to co-exist. As noted earlier, the GLC was created in the manner in which it was created under Act 32 because there was no known legal entity representing the association of lawyers in 1960. The GBA was registered as the professional body responsible for the regulation of the legal profession in Ghana in 1974. 

After the registration of the GBA, then then General Secretary, reported as follows: “The Association has officially informed the Chairman of the General Legal Council and the Attorney-General of the registration of the Association under NRCD 143 as a corporate entity. The letter pointed out that under the relevant provisions of the Decree, the Association will assume responsibility for various matters, including disciplinary proceedings, now being handled by the Council. It would appear that with the registration of the Association these functions now exercised by the General Legal Council should, by necessary implication, devolve on the Bar. Indeed, some important provisions of the Legal Profession Act, 1960 (Act 32), under which the Council was established are in conflict with those of NRCD 143. The Association has accordingly suggested to the Attorney-General to take all steps necessary to enable the Decree to come truly into force and be duly implemented. The Association has indicated its readiness to take part in discussions with both the Chairman of the General Legal Council and the Attorney-General leading to the realisation of the objectives of the Decree.” It must be added that, the GBA was also later registered as a foundational member of Professional Bodies Association. 

Indeed, steps were put in place to ensure that the GLC handed over its activities to the GBA. A year later, reporting on the relationship between the GLC and the GBA in his annual report on the activities of the GBA during the 1975 Bar Conference, this is what the General Secretary said: “As was pointed out in last year’s report, it is expected that eventually the General Legal Council will be dissolved to enable the Bar Association to assume the role envisaged for it by virtue of the provisions of NRCD 143. A delegation of the Bar was to have met the Chief Justice and some senior judges on the issue with a view to coming out with views for presentation to the authorities. This meeting could not come on and it is suggested that the next Executive pursue the matter as important.” 

It may sound surprising that the intended handing-over did not materialise. But the history of Ghana’s military rule from 1972-1979 and 1981-1992 and the intense friction between the legal profession and the various military regimes most likely contributed to the stalemate in the processes for dissolving the GLC. Now, the big question is: Why has nothing been done under the 4th Republican constitutional rule? We shall return.

  • Continuing legal education/training

In the GLC’s press statement dated 8th May, 2023 under reference, it is stated that lawyers will soon be required to complete 12 hours of ‘continuing professional development’ under L.I. 2423 as a prerequisite before their licenses are renewed under the soon-to-be-passed Legal Profession Bill. The press statement added that “the requirement for lawyers to complete Continuing Professional Development before the renewal of a practicing license, is a standard requirement in some jurisdictions around the world.” What the statement failed to add is that, in those “jurisdictions around the world,” it is the Bar Associations and Law Societies that organize the professional development programmes, and not any other entity, such as the GLC. The statement also failed to mention that the GBA already has a CLE Institute that has been organizing such professional development programmes for lawyers in Ghana (though the programme could use a purely ‘by lawyers for lawyers’ approach and also freshen up its list of recycled panelists).

It bears emphasizing that, over the years, the GBA has been responsible for organizing continuing legal education (CLE) programmes for lawyers in Ghana. This is stated in the GBA’s Constitution. To that end, the GBA has set up a CLE Institute that has been responsible for organizing continuing legal education programmes. Being emboldened in its continuous illegal co-existence with the GBA over the years – largely due to a timid and yielding Bar and its executive council – the GLC now intends to arrogate the holding of continuing legal education programmes for lawyers to itself through the ill-conceived Professional Etiquette & Conduct Rules passed in 2020.

In the result, the GLC must note that its proposed CPD-for-license campaign is void ab initio, or better still, dead on arrival. The clandestine move to impose such an aberration on lawyers will not work. The whole scheme smacks of another attempt to cook-up a GLC-GBA collaboration to collect money from lawyers in similar fashion to the collection of solicitors, pupils and Chambers licenses fees, which has become an embarrassing subject-matter of adverse findings by the Auditor-General. The old folk who are already convulsing from withdrawal symptoms and are looking forward to populating a so-called GLC-run CPD programme must rethink how they intend to spend their final days. If the CPD duties fail (and it duly will), they can consider Granny or Grandpa ‘day care’ in their homes. Failing that, National Cathedral Trust Board membership will be worth a try. Or better still, Government appointment to the Council of State. Or, they can join the Council of Elders of any political party of their choice – if there are vacancies there, that is. But they should, please, not head to the GBA’s CLE Institute; we have enough old souls of our own to manage. 

 

E: Conclusion

As the saying goes, those who live in glass houses should not throw stones. In the same vein, public institutions of doubtful legal existence must do well not to try the patience of citizens. In this day and age of fake news, any idiot can publish a statement and make it viral. For those who harbour no malice, such stuff is rebuffed with ease. For those with a false sense of untouchability and invincibility, such events strike at the very marrow of their being. In their bid to kill the offending mosquito on their cheek, they end up breaking their jaw bone with their own hefty slap. The GLC felt so incensed by the so-called statement about exams-for-license attributed to it and felt the need to issue a rebuttal. By so doing, it ended up exposing its own existential inadequacies. 

 

Same time next year when we get to celebrate another World Press Freedom Day, may we be reminded to make our country’s local theme: “Basic listening and reporting techniques: A must for journalists.” This will bring to the fore the need for proper training for some of our reporters. If truly the Chief Justice never mentioned that lawyers will write exams as a prerequisite to renew their license, then it was most unfair for a journalist to concoct such a story. Fake news does not help anybody. But it definitely hurts somebodies. FOOTNOTES

 1https://www.theghanareport.com/lawyers-to-write-exam-before-renewal-of-licence-chief-justice/ (last accessed on 12th May, 2023)

 

 

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