On the 16th day of June 2022, one “Nana Kwaku Dua” published an article on a news portal called www.thepressradio.com titled “NPP MUST NOT ELECT A LAWLESS LAWYER AS ITS GENERAL SECRETARY”.
This gentleman describes himself as a “Contributor” and gives no indication as to whether he is a member of the NPP Party or his background for one to know the context within which to situate his analysis. It is understandable that such vile propaganda will be thrown when people are aware of the impact that Justin Frimpong Kodua is making in being elected as the next General Secretary of the great NPP.
What is unfathomable is for one to use decisions of the Supreme Court to do mischief. It clearly reveals that the author did not read the full case, or he relied on hearsay to write same or has no iota of appreciation of the law and this was purely based on mischief.
In this regard we will use the opportunity to school him on the true effect of the two decisions of the Supreme Court used in his analysis and conclude that Justin Frimpong Kodua’s office does not fall under those categories of officers debarred from contesting elections by the operation of law. He can remain in office and contest internal party elections. One thing is certain remaining in office while contesting for an internal party position does not violate the law and this situation has been cleared by the Supreme Court.
The first case cited by the author to do mischief is the case of ADRA V NATIONAL DEMOCRATIC CONGRESS, LAMTEY, YAWSON AND OTHERS [2017-2020] SCGLR 182. For purposes of education and enlightenment, it’s important to delve into the case. The 2nd defendant in the case was an employee of the Ghana Highway Authority (GHA), a member of the then ruling NDC party and was registered to contest as constituency chairman. The 3rd Defendant was an administrative officer with the Ghana Education Service (GES), specifically, with Swedru High School, a member of NDC, and was also registered to contest for the position of Constituency Secretary.
The plaintiff invoked the Supreme Court’s original jurisdiction and stated claiming that by virtue of the provisions of Article 94(3)(b) of the Constitution, the Defendants were not qualified to be members of Parliament and, since they are not qualified to be members of Parliament, by virtue of Article 55(8), they do not qualify to contest for the positions they are seeking for, that is, constituency Chairman and Secretary respectively. Plaintiff’s submission was based on the premise that Defendants are civil servants.
The Court in deciding the matter stated emphatically that even though the GES is listed as a PUBLIC SERVICE, it is specifically excluded from the list of services (refer to article 190 of ’92 Constitution) whose members are disqualified from becoming members of Parliament under Article 94(1). Furthermore, the Court indicated that though the GHA is not specifically listed [in article 190], it is a state-owned corporate body and therefore comes under Article 190 (b).
The Supreme Court was of the view that if the framers of the constitution wanted to disqualify members of all services listed under Public Services, they would simply have stated that “all members of the Public Services” are so disqualified. They wouldn’t have listed some of the services leaving others.
It was on the basis of this reasoning that the Court held that in adopting the maxim of exclusio unius est esclusio alterius as an aid to interpretation, even though the GES and the GHA are both Public Services, their members are not disqualified from becoming members of Parliament and also not disqualified from holding executive positions in political parties.
From the above holding of the Court, the Court was clear in its holding that public services and by extension public officers of such services who do not fall within the listed public services named under Article 190 can contest as Members of Parliament neither are they excluded from holding executive positions in political parties. YEA just as the GES and the GHA are not part of the list of institutions whose members are debarred by operation of law from contesting in party elections.
It is therefore mysterious how the author of the article stated that “the supreme court must have adopted a literal rule of interpretation in establishing that the two defendants( employees of GES, Ghana Highway Authority) were members of article 190 and excluded from the effectiveness of article 94 (3) b.” The Court said no such thing!!! This statement by the author in the introductory part of his article must have clearly been borne out of stomach-driven mischief or a poor appreciation of the holding from the ADRA case.
The author goes on to conclude on this point to say that “Thus far, the NPP ought to update its exclusionary list of members disqualified from holding party positions with immediate effect”. Implicit in this statement is an admission that Justin Frimpong Kodua’s office does not fall under the list of people disqualified by reason of their office. In conclusion, his nomination is not in breach of any law for that matter. What the author fails to comprehend is the fact that whatever update he has in mind for the NPP, it cannot contradict what the Supreme Court has stated. As such any update that the party may introduce to exclude certain political appointees by reason of the office, they hold from contesting internal positions must not be at variance with what the Supreme Court has held as same will be void and of no effect. Furthermore, it cannot also take retrospective effect to affect this election.
After failing to uphold his position using the Adra Case stated above, the author proceeds to use the case Civil and Local Government Staff Association of Ghana (CLOSSAG) v. The Attorney-General & Others[2017-2018] 1 SCGLR 197. The author stated the holding of the Supreme Court of Ghana,: that on the true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the 1992 Constitution, held that, while employees of the civil service and local government service have a right to join any political party; they cannot be seen as or openly engage in any political activities while maintaining their employee status with the civil or local government service.
It appears that the pseudo-named author decided to rely on the headnote and forgot to read the full case as done by many lazy law students. This is revealed by his poor legal analysis and even more so poorer, his logical reasoning.
After affirming that the establishment of Y.E.A is governed by the Youth Employment Agency Act 2015, Act 887), he then proceeds to make mention of a certain “unknown” directive issued by the Public Service Commission on 8th August 2019 with directive No. AB677/678/01 stating that “a Public Officer who intends to take part in active political activities, whether directly or indirectly, should first resign from the Public Service before taking the proximate step towards the realization of the ambition to be a Member of Parliament or engage in open party Politics.”
It is on account of this directive that the author hurriedly jumps to conclude that since the Court held in the CLOSSAG case that members of the civil service and local government service while having the right to join any political party; they cannot be seen as or openly engage in any political activity while maintaining their employee status with the civil or local government service.
Then comes the infamous conclusion by the author that … “Accordingly, this directive from the Public Service Commission appears to have duly acknowledged the Supreme Court’s ratio in its later and recent case of the ‘Civil and Local Government Staff Association of Ghana (CLOSSAG) v. The Attorney-General & 2 Others decided in 2017”
The conclusion reached is as bad as the reason advanced to justify it. In the first place, there is no premise from which the author attempts to make this warped and convoluted inference or nexus that the directive from the Public Service Commission appears to have duly acknowledged the Supreme Court’s ratio in the CLOSSAG case.
The confidence with which the author draws this connection is quite bemusing to say the least. The reasons advanced to support this weak connection however will find no foundation to sit on, upon further scrutiny.
Firstly, the decision in the CLOSSAG case can by no stretch of one’s imagination be a case that covered or considered public officers as being inclusive of the ambit of the Courts declarations. The members of CLOSSAG as the acronym suggest are Civil and Local Government workers were the only group of persons that the case concerned as such anyone who does not fall within their membership is not bound by those declarations made therein by the Court. If the author had read the full case, he would have learnt that Justice Sophia Akuffo at page 224 of the law report affirmed the Court’s declarations on the case related to only CLOSSAG.
That being the case, the CEO of the YEA by reason of his appointment falling under article 195 of the Constitution [see section 12 of YEA Act] is a public Officer and not a Civil servant hence, no inference can be drawn as the inspiration for the PSC’s directive.
It is important to mention that the author may be the only one that has this directive in his pocket, as such directive is not even on the Public Service Commission’s portal. In this era when opponents are desperate, ghost directives may be created. What governs this NPP elections is the Constitution of Ghana, NPP Constitution and Election Directives of the NPP. In all of this, Justin has acted lawfully and is in compliant of same.
Assuming without admitting that there is such directive, Directives of the PSC cannot in any shape or form override the clear holdings and determinations of the Supreme Court. The Supreme Court in the ADRA case was emphatic to say that even though certain public corporations may fall under the Public Services, their members are not disqualified from becoming members of Parliament and/or disqualified from holding executive positions in political parties once they are not mentioned in Article 190 as that was not the intention of the framers of the constitution. Indeed, if the framers wanted to exclude any such public officer or service for that matter, it would have emphatically stated so.
It is important to note that even the legislative arm of government does not have the power to make laws that seeks to alter the decision or judgment of any court per article 107 (a) how much less the PSC? It is for this reason that it is contended that the said PSC directive in itself is contrary to law such was dead on arrival.
What rings in our minds at this point are the words from the celebrated case of Mosi v Bagyina “You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity”
In the instant situation, the purported PSC directive which formed the basis of this article that the author used to describe Justin Frimpong Kodua as lawless is in itself a lawless directive which is a nullity. Therefore, any inference or reasoning premised on it will fall.
Additionally, any proper student of the law would know the significance of Article 11 of the constitution and its hierarchical nature. As such, case law which forms part of the common law would definitely take precedence over a mere “lawless” directive from the PSC.
Justin Frimpong Kodua is a lawyer and there is no dispute on same. His actions of remaining in office and contesting cannot be legally questioned and same is affirmed by the Supreme Court in the ADRA Case. He may choose to resign to contest as it seems to be the desire of the author but cannot be held legally culpable.
The person who has acted lawlessly is the author “Nana Kwaku Duah” who sought to do mischief with the decisions of the Supreme Court. For now, his argument has “fallen down frat” and the integrity of Okumkom remains unblemished.