We Need A Legal Revolution And We Need It Now!

Lecture delivered by Dr. Raymond A. Atuguba at the maiden Revolutionary Lecture Series, under the theme:
“Restoring The Values of Probity, Accountability and Truth in Contemporary Governance”,
in the College of Physicians and Surgeons Hall on 2nd June, 2017.

His Excellency Flt. Lt. Jerry John Rawlings, former President of the Republic of Ghana, all other protocols observed. Ladies and Gentlemen.
.
Growing older, I have become a storyteller. My mother, the greatest woman who ever lived, would be a little surprised to see me on this platform. She was popularly called First Lady. As Regional Women’s Organiser of the National Democratic Congress (NDC), she was considered as the premier woman in the Region, hence the name. As her driver, I accompanied her to many party meetings and events. And I ran many party errands for her. Anytime I needed to find her in Accra, it was at the party headquarters near Paloma on Ring Road. I hear the location has now changed. And I remember she came quite often to that office and to other locations, mainly in the Achimota area, for meetings. It appeared to me that the NDC of that time made their regional and lower level executive officers central to their national level decision-making. During our periods of togetherness when she was on party business, we will argue a lot. Soon, because I was critical of President Rawlings and her NDC, she labelled me a member of the opposition.
.
To date, there are three things I do not quite understand about my mother and her NDC. When my big brother, Frank, was due in Germany for a semester or so, as part of his medical studies, he did not receive any government or party support, although the family had no money to foot the bills. When I was admitted to Harvard, I did not receive any government or party support for my studies, although I applied for government support and good people like Mr. A. T. Konu, Dr. Seth Bimpong-Buta, and Mr. Kweku Ansa-Asare made strong representations on my behalf. I must add a footnote here. I wrote to the State Insurance Company Ltd, controlled by Government, insisting that as the Best Student in Commercial Insurance Law for my year, I deserved a plane ticket from them, and my former Lecturer, the late Mr. Albert Fiadzigbey, drove me one Sunday morning to the house of the then Managing Director and made it happen.
.
So, the blood son of a Regional Women’s Organiser of the NDC, whose husband was a founding member of the NDC party in his region, left Ghana on board a Ghana Airways Flight GH 120 to New York, with only $225 in a leather wallet crafted in Sokabisi near Bolgatanga.
.
And this husband of hers was not spared the ordeal. When he was unceremoniously uprooted from the Upper East Region against his will, and at a time he badly needed to be close to home to put his affairs in order ahead of retirement, and inappropriately transplanted in Accra, nothing was done by their party to reverse it. Try that on a low-level party “foot-soldier” in Ghana today, and see the “calls” that will come to you from Flagstaff House, and that is if you are lucky to escape with just angry phone calls.
.
In summary, what I could not understand was why a high-ranking party official, who had access to party cash, would ensure that all the cash was used only for party purposes, and nothing else, whilst watching her blood children struggle and suffer to advance themselves educationally, a function which she herself constantly endorsed as a topmost priority.
.
What I could not understand was why additional to sacrificing her life, health, time, and family, she would sacrifice the little resources she had for a party that did not seem to care about her; I do not remember that we filled the petrol tank of my Father’s car with party money on any of the trips we made.
.
I got to know all the NDC party bigshots through her. So she knew them. She had access to them. Yet, she did not deem it right to use access to those big men and women to the selfish benefit of her children and her husband.
.
For her and her husband, it was enough that President Rawlings, against all technical advice and political opposition, had insisted that electricity be extended to rural areas in Ghana, so that doctors up north will no longer have to perform surgery with lanterns and torchlights. It was enough that students will now have electric lights to prepare for their O and A Level examinations, and not have to inhale carbon monoxide from lanterns for hours on end, as their children had to do. It was enough that governance had been decentralized, so that services and responsibilities were within walking distance; and he, as a School Master, did not have to travel 1,000 kilometres every month to the Ghana Education Service headquatres in Accra to get the least thing done that was done.
.
Today, party faithful and foot soldiers way below the position my mother held, may illegitimately garner State influence and positions, and millions of Ghana cedis for themselves, their husbands and wives, their children and cousins, their in-laws and outlaws, their boyfriends and girlfriends, their cats and dogs.
.
I was born black, in rural northern Ghana, and left-handed. So for me, marginalisation is second nature. I have associated naturally with the marginalised, the oppressed, subalterns.
.
The marginalization, disparaging remarks and insults we faced as northerners going to school in Kumasi prepared me for the marginalisation I was to face going to school in the United States as a black person.
.
The marginalisation I face daily as a left-handed person reminds me perpetually of the need to organize against “the regular”, “the normal”, and in support of “the other”. In the tutorial rooms in Legon when I got there in 1993, all the seats with wooden writing pads were constructed with the pads to the right; none had a pad on the left.
.
My Father kept detailed written records about each of his children growing up. I have read those about me. My favourite sentence in there is the one which says; “…This is Raymond’s third time of dying and coming back to life”. What he did not add was that the only reason I survived those times was because the Baptist Medical Centre was located only 8 kilometres from Nalerigu where we lived, 9 minutes by car and 1 hour 38 minutes by brisk walking, according to Google. What he also did not add was that in rural Ghana, by the second, hundreds of children died because they did not have a Baptist Medical Centre that near them.
.
One of the images I have never been able to rid my mind of in over 35 years, and in respect of which I probably need to see a shrink is this: my Father’s 1974 Datsun 120Y car, which is still on the road, was often the only car in the village for many, many miles around. So our house was the first point of call when a health emergency occurred. So he hardly slept. He was the ambulance driver of the village and will make several trips to the hospital, many days of the week. But there were times that the good old Datsun would give up and await a mechanic, or a car part from the city. During these times, this news constituted a death sentence. Someone would rush to our home and announce that there had been a lorry accident, or a woman had been bitten by a snake, or was experiencing complications in labour far beyond the capacities and equipment of a Traditional Birth Attendant, and he would have to announce to them that the car was out of order. The images I still cannot get out of my mind are those of the relatives of these hardworking, tax-paying victims of political and economic mismanagement, as they descended the three steps from our varenda and burst out mourning, in a dirge, because they knew that their loved ones, their friends, their compatriots, would certainly die.
.
What I have omitted in the above narrative is that the distance between Damongo, where we lived then and Canteen, where we had the West Gonja Hospital, was again just 7 kilometres. If my father had not been posted to work near the Baptist Medical Centre, and the Catholic West Gonja Hospital, two of the best rural medical centres in Ghana, I would have died as a child, from one of the disproportionate medical emergencies I experienced and would not be here talking to you today.
.
I am essentially an accident of the political, economic, and social mismanagement of this country. The mismanagement of Dr. Kwame Nkrumah’s Ghana sought to kill me, but I managed by sheer accidents of history to survive. So forgive me, when I take the mismanagement of this country personal. It is personal and it is personal for you too.
.
Having narrowly escaped the gallows of political and economic malfeasance, it is sensible for me to work against injustice, in all its forms. I hate injustice. Injustice freaks me out. It sends my body, soul and spirit into a riveting stupor, responsive only to the pain that injustice creates.
.
I have reflected on why President Rawlings asked me to speak today. I still do not know why. I have not asked him why. As a radical constitutionalist, all I need to remember is that the June 4th Revolution was a real revolution of the people, supported by almost all, and toppled a regime that had wrested power from the people. Whatever the reason for the invitation, I am happy to be associated with today’s panelists. For example, Dr. Benjamin Bewa-Nyog Kunbuor, Ben-K, or “Landlord”, as we call him, is one of the finest policy and legal brains this country has. In 2004, he and I and Prof. Mrs. Ellen Bortei-Doku Aryeetey of Legon did the Right to Development report for Ghana. It was during this time of putting together ideas for moving Ghana forward developmentally, and to avoid the social and economic murder that goes on in this country, that I encountered Dr. Kunbuor’s effortless intelligence and overall love for this country.
.
I have also reflected on the theme for the Maiden Revolutionary Lecture Series. It is a tricky one. “Truth” is “a whore of a word”. What truth? Which truth? Whose truth? In 1998, one of my mentors deleted a sentence I had written in my first article. Very displeased, I protested, arguing that the sentence was the truth. Very quietly and calmly he said to me: “It is not all the truth the we say”. I have not been able to forget that statement. In my more recent history, working at the Office of the President for 5 years, first for President Mills, and then for President Mahama, I was confronted many times with the equivalent of the following statement: “Can you handle the truth?”
.
And so the question I have for all of you this afternoon is whether you are able to handle a version of the truth that I am about to say. Seeing that you are not entirely sure of your capacity to imbibe truth, I will limit myself to only three such truths.
.
TRUTH NUMBER ONE:
Thanks to President Rawlings and Prof. Adu Boahen, Ghana returned to constitutional rule a quarter of a century ago. The “culture of silence” was replaced first by “criminal libel”, then by “Radio Eye”, then “kan namin kan bi”, followed quickly by a cacophony of FM Stations-with excellent Community Radio Stations gasping for air, and ending with the “Muntie 3”.
.
Political and civic action evolved from the consultations of the National Commission for Democracy, the Consultative Assembly of butchers, hairdressers and nightsoil carriers, through “Kumi Preko”, the repeal of the Public Order Decree and the Committee for Joint Action, to “Delta Forces”.
.
Economic liberation, or is it liberalization, was at once more complicated and incredibly simple in its evolution. Historically complicated, it started with the economic nationalism of Nkrumah, notched up by the economic defiance of “Yentua” and interspersed with periods of economic cluelessness and disintegration. Yet the story of economic evolution from 1992 is simple: the inherited Economic Recovery Programmes of Structural Adjustment simply changed faces with each President; a human face, a Presidential Special Initiatives face, a Chinese face, an infrastructure face, and now a private sector face. The rest of the body, and more importantly, the spirit and the soul, remain ever the same. And each era had their “Faroe Atlantic”, “Balkan Energy”, “Ghana Telecom”, “CAN 2008”, and now the “The Eurobond”, all of which ended with judicial, or quasi-judicial processes.
.
International relations was forced into the mold of economic liberalization, in which it “lived and moved and had [its] being”, but like all the others, it ended straight up in the courts of Law and Justice, some have said of lawlessness and injustice: such as the suits against the privatization of Ghana Telecom, the suit today about the ECG (the Electricity “Corporation” of Ghana) and of course, the suit against the hospitality offered to the “GITMO 2”, and in respect of which the Supreme Court has just ordered additional arguments to be filed before they will deign to give judgment.
.
One thing stands out in the evolutionary stories of the key domains of our national life. They all ended up in the courts and with the law. As Ghanaians, we have, fortunately or unfortunately, dumped our survival, our national aspirations, the essence of our being, our faith, at the altar of the law and the courts, for better or for worse.
.
By doing this, Ghanaians have constructed a two-faced governance and legal architecture and infrastructure: what happens in the courtrooms and what happens in the common sphere; on radio, on television and on social media. In other words, in the last 25 years, two domains of law and justice have evolved. Law and Justice in the corridors of the courts, and Law and Justice in the public domain.
.
Part of the problem with our governance infrastructure is that it fails to recognise the evolution of these two different domains of law and justice, and is therefore, ill-prepared to moderate them. What is worse, public commentary on the law and justice dimensions of our governance continue to conflate the two domains. And opportunistic commentators have moved stealthily, easily, unchallenged and almost inconspicuously from one argumentative domain to the other, as if the two are no different. This fundamental faultline in our analyses of our governance issues needs to be exposed and remediated.
.
The two opposing domains of law and justice are not hard to reconcile. They indeed converge. The relationship that should exist between law and justice in the courthalls and in the byways is that of servant and master. The purpose of the former is to serve the latter. So Law and Justice in the courthalls must serve Law and Justice in the public sphere. The reason for this is simple. The former depends on the latter for legitimacy, resources, its very existence and is infinitely less powerful. The two should not be allowed to clash, but where they do, the weaker always suffers dire consequences. My fear is that the “Muntie 3” and the “Delta Forces” sagas are harbingers of an imminent clash of the two domains that will leave everyone worse off. We must arrest the trend.
.
Arresting the trend is easy. Our 1992 Constitution has shown the way. When that butchers and hairdressers wrote in their Constitution that: “Justice emanates from the people and shall be administered … by the Judiciary” they knew exactly what they were saying. They had effectively located the source of “Justice” in “We the People”. “The People” are the fountain from which “Justice” emanates, and the “Judiciary” is merely to “administer” that justice. The judiciary is not to determine the substantive content of justice, that is the preserve of “The People”, but once determined, the judiciary then administer it.
.
The butchers and hairdressers did not end there. They additionally wrote in the Constitution that “Citizens may exercise popular participation in the administration of justice through the institutions of public and customary tribunals and the jury and assessor systems”.
.
For as long as the Judiciary, the Judicial Council, the General Legal Council, the Board of Legal Education and kindred bodies continue to usurp the function of “We the People”, a growing gulf expands between Law and Justice in the courthalls, and Law and Justice in the byways. The result is Muntie 3, Delta Forces, Galamsey, Instant Justice and all the other ills we all complain about on a daily basis.
.
What Ghanaians want by way of Law and Justice is not difficult to provide. The public complaints about Law and Justice sing a unique and constant chorus:
.
ONE: Entry into the Faculties of Law and the Ghana School of Law for our kids is too laborious; the processes conduce to preferential treatments, weed out the poor and marginalized, and what they are taught there is of doubtful utility for our Nation at this point in time.
.
TWO: It takes too long to get to court. It costs too much when we get in there. Its ultra crowded when we get there. The principles of Law and Justice applied to us in there are alien to us (some imported from the Brits many centuries ago). We are lost in a maze of procedures and jargon whilst we are in there. It takes too long to get out. The results we get from the courthalls are often spiced with corruption and flavoured with politics and our relationships are damaged after we get out.
.
THREE: There are alternative systems of justice at the Chief’s Palaces and at the CHRAJ offices, but the regular courts have pulled out the teeth from these alternative systems.
.
To bridge Law and Justice in the courthalls and Law and Justice in the byways, a lot has to change. We need a simpler structure for legal education, where law faculties independently prepare students for a law degree and to write a Bar Exam set by a Board of Legal Examiners-there will be no need for a Law School in this scenario. We need a complete overhaul of the teaching methodology in our law faculties so that law students learn about our Nation, “not as an idea, but in its profound reality”, preparing themselves for a life of service in nation-building, not a life of national destruction at the service of local and foreign clients whose mission is to milk Ghana dry.
.
In 2010, a colleague and I, working with an army of law students and statisticians, and some World Bank cash, sampled 320 case dockets in our courts. The unique thing about this exercise was that we examined the dockets from cover to cover, tracking everything about the case: who are the parties; why did they come to court; what did they ask the court to do; when was the case filed; how many witnesses were called; how many adjournments were given; why were the adjournments given, how long did the case last; and many, many, more questions. The process opened my eyes to the profound reality of our Law and Justice system for the very first time. The report made some startling revelations. For example, contrary to the body of learning then making the rounds, we found no correlation between taking notes in longhand, court automation, court refurbishment, and all the other paraphernalia and the rate of disposition of cases. Significantly, we found a correlation between the rules of court and the rate of disposition of cases. There are many other findings in this report and much more data on our laptops showing the real causes of our Law and Justice malaise and the options for reform. There are also many options in the report of the Constitution Review Commission on the types of Constitution-trailer laws and administrative procedures that need to be instituted to this end.
.
It is completely unacceptable for us to wait for over a hundred and fifty years for our British masters to switch to a Witness Statement in place of laborious, resource intensive and timewasting oral testimony by countless witnesses in a case, before we do same. It is still unacceptable to continue to wait for the British to adopt a Defence Statement before we do same. The immediate adoption of a Defence Statement, a Reply Statement, inquisitorial processes, and Written Concluding Statements, additional to the Witness Statement, could reduce the time for the disposal of simple cases from 3 to 5 years to 3 to 5 months. Always remember that those who opposed the adoption of Witness Statements until the British showed us the way are the same people who will oppose the adoption of these other Statements, and they will continue doing so until another 150 years, when the British, known for their conservatism, again show them the way. You listen to them at the Nation’s peril.
.
The key to addressing the second set of public complaints about Law and Justice lies in the immediate adoption of revolutionary rules of court that move court processes closer to the truth through the incorporation of inquisitorial mechanisms; that makes the courthalls more efficient through the reduction of the time and related cost of rolling the wheels of justice; and that audit the judgments and orders of courts for corruption; monetary, political, or otherwise. This cannot be done unless the making of the rules of court are wrested away from incestousness. Self-regulation is inherently problematic. Internal revolutions are near impossible. External agents are badly needed. Agents other than judges and lawyers must be central to the Rules of Court Committee, if this revolution is to happen.
.
It is not my proposition that our Law and Justice systems have not experienced reforms in the past. Good reforms have taken place in the last two decades. However, those reforms have missed three things:
.
1. The real causes of the problem have often been missed, and only the symptoms addressed; automation addresses symptoms, changes in the Rules of Court address the root causes;
.
2. Secondly, the wrong reform agents have been identified for the task: as already noted, self-regulation is inherently problematic as interested constituents will merely fiddle with the existing system and leave it intact at its core, because it is advantageous to them.
.
3. Third and lastly, the reform locus has been misplaced: making the court system electronic must first be located outside of the courts, not inside of it; electronic filing of cases and electronic notifications of court processes reduce the human agency that court officers love, improve efficiency and speed, and will reduce human and vehicular traffic in Accra Central!
.
I get quite angry with those who pile up mountains of excuses for obstructing simple reforms of this nature. To those crying themselves hoarse about how illiterates and rural folks will be disadvantaged by new rules such as these, I have one question: how do these illiterates and rural folks apply for United States and other visas that depend 100% on electronic processes of the kind I am proposing. The cost of using the slow track non-electronic processes to these illiterates and rural folks is hundreds of times higher than renting a computer and a computer literate to process court documentation. And believe me, there is greater and more sophisticated internet traffic in the “sakawa” dens of Nima than on the high streets of Accra.
.
The last set of concerns about Law and Justice relate to alternative justice; justice without lawyers and judges. Just as we spoilt urban kids have our own conception of justice, every community out there has their own too. There is absolutely no reason why we should seek to lower these higher community standards of justice to conform with our own. No matter how many times the Supreme Court says that certain sanctions may not follow a person’s refusal to answer the summons of a chief, community folks will still carry a sense of obligation and respond to such calls, prostrating full length before the Chief on arrival at the palace. Support for and incubation of alternative systems of community justice, as encouraged by and within the boundaries of our Constitution, are essential for bridging the yawning gap between Law and Justice in the courthalls and in the byways.
.
TRUTH NUMBER TWO:
Having achieved political citizenship, the broad majority of Ghanaians are yearning for economic citizenship. They were smart enough to sow the seeds for this a quarter of a century ago. Those seeds are found in our fundamental law, the Constitution. One hot afternoon in 1992, and given that the Ghana Bar Association and many other highly revered and highly placed authorities of the law had boycotted the entire constitution-making process, the butchers and hairdressers wrote the following beautiful words into the Constitution:
.
“The State shall, in particular, take all necessary steps to establish a sound and healthy economy whose underlying principles shall include…the recognition that the most secure democracy is the one that assures the basic necessities of life for its people as a fundamental duty.”
.
Today, the average Ghanaian is yearning, crying, groping, fighting, maiming, killing for economic citizenship. Given the “lawfication” of the political, economic and social discourse in Mother Ghana, ordinary folks are seeking after the capacity of Lawfare to aid them achieve economic citizenship. And the law and lawyers stand clueless. Unless the Law can aid them to achieve economic citizenship, there is a Constitutional implosion and they will have to find other means of achieving it. It was the June 4th Revolution that for the first time squarely equalized political citizenship with economic citizenship. Those who still doubt that these are equal need to read and meditate on Festus Iyayi’s book on Economic Violence.
.
Inimical footsoldierism, galamsey, armed robbery, instant justice, are popular reactions to an oxymoromic legal duplex: the hegemony of Law that crushes people second by second, minute by minute, hour by hour, day by day, instead of liberating them; and the lameness of Law as it remains clueless in the face of a popular cry for lawfare in aid of economic citizenship.
.
In the circumstances, and at the very least as a stopgap measure, an intelligent framing of Law and Justice in today’s Ghana cannot but recognise radicalism as an option, sometimes as a necessity, and institute mechanisms for containing it when it happens. Denying that it is an option, insisting that it should not be an option, is playing the ostrich. The thirst for all forms of Justice, political, economic, social, is more dire than the thirst for water. Like Poverty, it “is like heat, you cannot see it, you can only feel it”. Anyone who has never experienced poverty, never experienced injustice, will never understand the rise of footsoldierism, galamsey, and the other matters of concern in Ghana today. What the butchers, hairdressers and nightsoil carriers in the Consultative Assembly said to us in 1992 is the same as what the footsoldiers and galamseyers are telling us today. Our democracy is not secure, we are not secure until we recognize “that the most secure democracy is the one that assures the basic necessities of life for its people as a fundamental duty.”
.
One reaction to the above is to say that I am justifying anarchy and praising wrongdoing. So we close our eyes, and continue to sentence persons who engage in petty thievery to 10, 20, 30, 40 years in jail, whilst rewarding those who pillage millions and billions of cedis with a few years of jail term, and we don’t even blink. A smarter reaction is to wonder how a tiny, under resourced, embattled, deprecated Electoral Commission in Ghana could organize one of the best elections in the world; covering every inch of the entire Country, reaching millions of voters with ballot papers, ballot boxes, indelible ink, and hundreds of other logistics; whilst many Ministries put together, with billons of Ghana cedis in their names, working with all the security agencies, and with full political support have not been able to engage with just a few communities, agree modalities for legal mining, develop alternative livelihoods for those who must exit mining, reclaim lives and property, and end the menace of galamsey.
.
TRUTH NUMBER THREE:
It is fashionable in Ghana today to talk against corruption. A good way to play mischief against someone is therefore to say that such a person supports corruption. At the risk of being misunderstood once again or being made a victim of mischief, I have to say that I am unable to support the type of anticorruption crusades we launch and fight in Mother Ghana.
.
Where anticorruption is reduced to targeting a few persons from the opposing party, rushing them through a trial, locking them up in jail, satisfying a donor trigger for release of funds that measures our corruption index by the number of government officials jailed for corruption, then the anti-corruption crusade becomes a real joke.
.
When we turn a blind eye to the billions of dollars that, as ISODEC has recently found, are leaking out of Ghana as illicit financial outflows resulting from the theft of our natural resources, trade misinvoicing, tax evasion, and similar high crimes, and focus on petty thievery by a small set of political appointees, we are doing exactly what someone wants us to do; keep chasing each other’s tail every 8 years, while they rape and milk us dry of our resources perpetually.
.
Fight corruption, we must. Fight it the way we are fighting it now, we should not. I have previously delivered a paper on new ideas for fighting corruption in Ghana, and would not want to repeat them here.
.
President Rawlings, Ladies and Gentlemen. In conclusion, I will like to recall the central role of Law in our national life. The greatest force of Law is the power to define. The Law defines everything. The Law defines what truth is for us as a Nation. The official truth is the truth according to the Law. It does not matter who truthfully won the 2012 elections. What matters is who the Supreme Court said, in their estimation of the truth, won the elections.
.
I will also like to recall the evolution of our civil liberties, our political activism, our economic management, and our international relations over the last quarter century, and the discovery that all these key domains of national life are moderated in the final analyses by the Halls of Law and Justice.
.
Finally, I will like to recall the three truths: the need for revolutionary law reform; the need for lawfare in aid of economic citizenship; and finally the need for a more sophisticated lawfare against corruption.
.
Having discovered the centrality of law to our governance, to our democracy, we need to do one more thing before we leave here. We need to remember that in the adversarial system of law and justice we practice in Ghana, the party who has better lawyers, more resources, a greater capacity to influence judges and court officials, has truth on her side, at least temporarily. In such a system, “moneyed justice” is dispensed, and the values of truth are often sidelined. This cannot continue.
.
A Revolution, from the Latin revolutio, simply means “a turn around”. We are not asking for all the Lawyers to be killed. Given the central role of Law and Justice in Ghana’s governance today, we are asking for a “turn around” in the way we conduct our Law and our Justice, as a measure to save our Democracy.
.
We need a Legal Revolution. And we need it now!
.
Thank you for coming, and may God Bless our Homeland Ghana, and make our Nation Great and Strong …
.

Reproduced with minimal editing for typos and clarity. 

One thought on “We Need A Legal Revolution And We Need It Now!”

  1. Pingback: The Atuguba Truths

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s