K.B. Asante on implications of decision on Fast Track court
Accra (Greater Accra) 19 March 2002 - All the seven persons who were on board the Ghana Air Force helicopter, which crashed at the weekend are dead. The wreckage of the helicopter reported missing on Saturday was found on Monday with the bodies of the seven occupants in the jungle of the Atiwa Range Reserve at Sagyimase, near Kyebi.
Another GAF (Ghana Air Force) helicopter located the wreckage at midday after 30-hours search involving combined units of the Ghana Armed Forces, the Police and Ghana National Fire Services, National Disaster Management Organisation (NADMO) and Asafo companies from the area.
The bodies of the victims, including a Nursing Officer at the Holy Family Catholic Hospital at Nkawkaw have been conveyed to the 37 Military Hospital for identification and autopsy. The GAF would announce the names of the victims after their next of kin have been informed. Last Saturday, the Minister of Defence, Dr Kwame Addo Kufuor confirmed that the Augusta Bell 412 helicopter had been found at Sekyemase, near Kyebi.
The wreckage was found late and a search team move in on first light to rescue survivors but there were none. The Ghana Armed Forces had set up a Forward Operation Base at Boma, near Kwabeng in the Eastern Region, to ensure effective co-ordination of ground and air operations.
A field hospital and other logistics were also moved to the area. The search mission had a total of 400 personnel drawn from the Army, Navy, Airforce, Police, Fire Service, the Forestry Department as well as people in the community. The rescue efforts had been difficult because of the nature of the terrain.
The helicopter disappeared on Saturday, March 16, 2002, while on a medical evacuation mission from Nkawkaw to the 37 Military Hospital in Accra. Seven people were said to be on board the craft when it left Nkawkaw - two pilots, two technicians, two patients and a nurse.
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Accra (Greater Accra) 19 March 2002 - The Attorney General and Minister of Justice, Nana Addo Dankwa Akufo-Addo on Monday urged Ghanaians to collectively uphold the rule of law to propel the country towards freedom from discrimination; xenophobia and intolerance for the citizenry live under equality, justice and dignity.
He observed that in spite of efforts that had been to make the country relatively free from acts of intolerance, recent events, such as spousal butchery, killing of children, increasing rape cases and other acts of aggression on women, chieftaincy disputes had unmasked a deeper hidden agenda of evil in some people to abuse the rights of others.
He said: "The conflicts, which have occurred in the country over the years, have been short but equally savage, involving systematic killing and butchering of male children and the raping of women. The remote causes said to trigger off these attacks have involved issues of either, ethnicity, chieftaincy disputes or religious intolerance."
Nana Akufo-Addo, made these observations when he opened a day's workshop to review Ghana's 2002 report on the Convention on the Elimination of All Forms of Racial Discrimination (CERD) of the United Nations Committee on the Elimination of All Forms of Racial Discrimination in Accra.
The Ministry of Justice organised it in collaboration with the National Commission on Civic Education (NCCE), with support from the office of the United Nations High Commission for Refugees.
The more than 70 participants are discussing issues regarding racial and ethnic discrimination, ethnic conflict, xenophobia, aggression, tribal disputes, and reparation for slavery.
It was a follow up to the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance held from August 31 to September 2001, in Durban, South Africa.
Nana Akufo-Addo noted that though the United Nations had adopted the Universal Declaration of Human Rights more than 50 years ago as well as other human rights instruments, the world community had a poor record in preventing the perpetration of human rights abuses and the dream of a world free of hatred and bias remained only half fulfilled.
"We are all witnesses to the recent atrocities in Serbia, Burundi, Sudan, Sierra Leone and Liberia," he said. He said the world community has only now agreed to establish an International Criminal Court (ICC) to bring the perpetrators of the most heinous crimes against mankind to book, adding; "even within the Rome Statue establishing the ICC, the term aggression has yet to be defined."
Nana Akufo-Addo said Parliament in the year 2000, ratified the Rome Statue on a bi-partisan basis and the Ministry of Justice was in the process of drafting the implementing legislation necessary to incorporate the treaty obligations into Ghana's municipal law.
The Attorney General called on bodies engaged in the fight against discrimination to collaborate and adopt a human centred approach in the practices. He stressed that governments must take all the necessary measures to alleviate the suffering of those, who were discriminated against and ensure that the general populace could live their lives with dignity and free from fear and want.
Nana Akufo- Addo said as Africa moved away from authoritarianism towards democratic governance, there was the need to strengthen her governance institutions such the legislature, judiciary and the executive and also empower civil society as key to the consolidation of democracy.
Human Rights Commissioner Emile Short said the existence of racial and ethnic discrimination in Ghana posed a serious challenge to her efforts at maintaining peace and nation building and also the Commission's long term objective of creating in the Ghanaian society, a culture of respect for human rights.
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Accra (Greater Accra) 19 March 2002 - Nana Addo Dankwa Akufo-Addo, Attorney- General and Minister of Justice, on Monday said he was in consultation with the Minister of Lands to find a lasting solution to the problem of land tenure in the country.
"Many of our customary laws on land are outmoded, and effective policies to address these issues have still not been put in place," he said, noting that causes of ethnic conflicts may encompass the rights of settler communities to have access to lands and chieftaincy titles.
Nana Akufo-Addo was opening a day's workshop organised in Accra by the Ministry of Justice in collaboration with the National Commission on Civic Education (NCCE) to review Ghana's 2002 Report on the United Nations Convention on the Elimination of All Forms of Racial Discrimination.
More than 70 participants from the Ministries of Foreign Affairs and Justice, NCCE, the Commission on Human Rights and Administrative Justice, the Police Service, non-governmental and civil society organisations as well as chiefs and parliamentarians attended the workshop, which was sequel to the world conference against racism, racial, discrimination, xenophobia and related intolerance held in Durban, South Africa from August 31 to September 7 last year.
The workshop offered participants the opportunity to engage in discussions to arrive at practical and effective measures to fight discrimination in all forms. Nana Akufo-Addo said conflicts that had occurred in the country over the years had been short. However, they had been "savage, involving systematic killing and butchering of male children and the rape of women".
"The remote causes said to trigger off these attacks have involved issues of either ethnicity, chieftaincy disputes or religious intolerance." He called on Ghanaians to collectively uphold the rule of law.
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Accra (Greater Accra) 19 March 2002 -The Court of Appeal (CA) will on May 23 give its ruling in an application brought before it by Graphic Communications Group (GCG) appealing against some parts of a judgment delivered on December 15, 1999 by an Accra High Court.
The three-member panel of the CA, presided over by Mr Justice Essilfie Bondzie announced the date at the court's sitting on Monday. The other two panel members were Mr Justices S.T Farkye and Mr. Justice Julius Ansah.
The appeal, filed on behalf of GCG by Mr Osei Agyeman-Bempah prayed the CA to set aside that part of the judgment, which stated that the conduct of the then Graphic Corporation in freezing its ex-employees' entitlements was not only wrongful, but also led to various diminution on their entitlements.
Another relief sought by Graphic was that the trial judge failed to adequately consider that the freezing of the entitlements of its re-deployed staff was a government decision, which was accepted by representatives of employees including the former workers of the corporation.
On October 29, 1993 Graphic dispensed with the services of the 59 members of staff who by the time of their dismissal, had served the corporation for periods ranging from five to 26 years. Not satisfied with their lay-off, the former workers filed a writ at the High Court on December 6, 1995 against their former employer, claiming certain reliefs.
The aggrieved workers contended that since the termination of their appointments was wrongful, unlawful, null and void, and of no legal effect, the High Court should order the corporation to pay them their due entitlements under the Providence Fund Scheme.
Additionally, they prayed the court to order Graphic to compensate them for wrongful dismissal, and to also go by laid down principles and measures for paying compensation to them under government approved labour re-deployment programme.
The former employees of the corporation further asked for an order that they be paid their annual salaries for the date of their purported termination or re-deployment, until the final determination of their employment status with Graphic.
Finally, they sought the court's order forcing Graphic to go by laid down provisions for the payment of End-of-Service Benefits (ESB) under the Collective Bargaining Agreement.
On December 15, 1999, the High Court presided over by Justice Nana Gyamera Tawiah, gave judgment in favour of Graphic, saying that the corporation was right in terminating the appointments of its former employees. The court, however, ordered Graphic to compile the entitlements of the dismissed workers by referring to the Collective Bargaining Agreement.
The order further stated that the corporation must, in particular apply the salary of each of them at the point of retirement on October 29, 1993 so that from this should be deducted whatever had already been paid to each re-deployed worker, with difference attracting interest.
The court also ordered Graphic to provide each dismissed worker with a statement of account of his or her Provident Fund Contribution to determine if there had been any under-payment, so that any difference be paid back to them with interest.
Finally, the court stated that severance award of two months salary and four months alary respectively, paid to junior and senior staff would not be disturbed by the court. On May 12, 2000, Graphic filed an application at the High Court asking for an extension of time within which to appeal to the CA against the court's judgment delivered on December 15, 1999.
Counsel submitted that looking at the public interest, it was proper for the court to grant an extension of time. The court dismissed the application for an extension on the grounds that "if this undue delay is to be tolerated by this court, I think it would rather work as an injustice on the ex-employees."
"While defendant corporation could comfortably wait for God-knows when to get the appeal finally determined, the ex-employees cannot be said to be in the same position.
A grant of extension would definitely prejudice the interest of the plaintiffs. In this case, I think the ends of justice will be better served if the application for extension of time is refused, and I refuse same accordingly."
On February 26, 2001, however, the CA presided over by Mr Justice S.A Brobbey with Justice Sule Gbadegbe and Justice Vida Akoto-Bamfo as other panel members, granted Graphic's application for extension of time.
The court's reason for granting the application was that "there seems to be a material point of law which needs to be settled in this court, and point relating to payment of ESB, directives on these, and their legal efficiency vis-a-vis the provisions of the Transitional Provisions of the 1992 Constitution."
It is the settlement of this material part of the law, which will form the basis of the CA's judgment on May 23. Mr Kwaku Paintsil is representing the re-deployed workers of the corporation.
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Koforidua (Eastern Region) 19 March 2002 - The 51 students arrested by the Koforidua police for engaging in violent street fighting in front of the Normal Technical Institute (NORMAL) have been granted police enquiry bail to report to the Regional Police Headquarters on Wednesday, March 20.
The students, 24 from NORMAL, 24 from the Koforidua Secondary Technical School (SECTECH), one from New Juaben College of Commerce(NJUACSO) and two Junior Secondary school(JSS) were engaged in the fight which brought traffic on the Koforidua-Effiduase road to a standstill until police intervened after sporting competition.
They wielded offensive weapons such as cutlasses, knives, sticks, crowbars and stones. Mr Stephen Anyan, Eastern Regional Crime Officer said, the students were granted the bail on Sunday after their arrests on Saturday to report on Monday with their heads of institutions.
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Kumasi (Ashanti Region) 19 March 2002 -Participants at a public forum on the review of the country's educational reform in Kumasi have called on the government to place greater emphasis on technical education as a means of promoting industrial growth and ushering the country into the middle income status.
They have also suggested to members of the President's committee on the review of educational reforms in Ghana to come out with practicable working solutions to bridge the widening gap between the urban and rural schools.
The forum, which was organised by the Ashanti Regional Co-ordinating Council and the regional directorate of education, was to enable members of the committee to solicit views from all stakeholders in education and the general public to fashion out an acceptable and appropriate system of education that could help put the country forward in the new millennium.
It attracted retired educationists, the clergy, traditional rulers, teachers, opinion leaders, the academia, educational workers, District Chief Executives and the civil society.
The Principal of the Kumasi Technical Institute (KTI), Mr. Asamoah Duodo, suggested to the committee to come out with a national policy on technical education to direct the focus of technical schools.
He said lack of reforms and direction in technical and vocational education had contributed immensely to the defeat of the educational reforms embarked upon by the government 14 years ago. Mr Duodo also suggested to the government to introduce reforms that could encourage greater partnership between industries and technical schools.
Dr Kofi Nyarko of the Kwame Nkrumah University of Science and Technology (KNUST), called for a new type of educational system that would make students more creative and develop their own ideas instead of always copying what other people had done.
Professor F.O. Kwami, former Vice-Chancellor of KNUST, who led members of the committee, said technical education was very important to the members of the committee and would do everything possible to place it at its highest level in the reforms. He urged Ghanaians to change their attitudes and encourage their wards to undertake technical courses.
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Accra (Greater Accra) 19 March 2002 - Nana Dr S. K. B. Asante, Vice President of the Ghana Academy of Arts and Science, on Monday, said one of the most remarkable constitutional powers ever conferred on an organ of state was judicial review of the acts of the President, Executive and Parliament and to declare them null and void if they were unconstitutional.
"When we consider that our constitution further enshrines a justiciable bill of rights and specifically confers jurisdiction on the High Court to enforce the fundamental human rights and freedoms guaranteed by the constitution, then we cannot fail to appreciate the pivotal role of the judiciary in our constitutional system," he emphasised.
Nana Dr Asante was delivering the first of a series of three lectures of the 35th J. B. Danquah Memorial Lectures in Accra, on Monday, under the theme "Reflections on the constitution, Law and Development," organised by the Academy.
The lectures commemorate the outstanding contributions of Dr J. B. Danquah to the political, social and economic development and independence of the country. The theme for the series, "Constitutionalism and effective government," would survey arrangements and extent Parliament and the Judiciary act as effective constraint on the Executive.
The second lecture, "The Constitution: Some social and economic development Aspects," would consider fundamental rights and freedoms, social and economic goals of the Directive Principles of State Policy and some specific issues such as land administration and reform of traditional practices to comply with the constitution.
The third; "Law and Development," would emphasis the impact of the law on private sector development and the relationship between international business negotiations and transactions and development.
Nana Dr Asante who chaired the Committee of Experts that drafted the 1992 constitution explained that the document explicitly conferred on the Supreme Court the power of judicial review on the following terms under Article two;
"A person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment; any act or omission of any person is inconsistent with or in contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect."
He stressed that, the Supreme Court would for the purpose of declaration make such orders or give directions as it may consider appropriate for giving effect, or enabling effect to be given to the declaration.
Nana Dr Asante emphasised that the judicial powers are reinforced by potent sanctions under Article 2 (3, 4, and 5), which states that any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court should duly obey and carry out the terms of the order or direction.
He said failure constituted a high crime liable to imprisonment not exceeding ten years without the option of a fine, adding that, the one would not be eligible for election or for appointment to any public office for ten years beginning with the date of the expiration of the term of imprisonment, while in the case of the President or Vice President, it constituted a ground for removal from office.
The Legal Expert stated that successive constitutions since 1966 had proclaimed the twin concepts of judicial review and justiciable bill of rights in the light of the authoritarian and illiberal excesses in the political and constitutional experience of the country.
Nana Dr Asante said a study of Supreme Court decisions since the promulgation of the constitution indicates that after nearly a decade of constitutional adjudication, there was evidence of an evolving philosophy of interpretation.
Nana Dr Asante admitted that although it was too early to detect a full-fledged approach, Judges of the Supreme Court appreciated the fundamental distinction between interpreting the constitution and construing an enactment.
However, the frequent and enthusiastic citation of the approach had not always been reflected in the process of interpreting the constitution, he said, stressing that mechanical and technical rules of statutory interpretation have been applied in a number of cases.
He noted that many Supreme Court Judges based their interpretation of the constitution on the intent of the framers and relied substantially on relevant documents such as the reports of the Committee of Experts and the various committees of the Consultative Assembly.
Although it was gratifying to rely on the report of the experts in elucidating the meaning or rational of various provisions, Nana Dr Asante stated that a liberal approach demanded more than a determination of the original intent of the framers.
Nana Dr Asante noted that a substantial number of judges had invoked the "spirit of the Constitution" in interpreting constitutional provisions, which was crucial in the outcome of the majority decision in the 31st December case.
He said other legal experts had been sceptical about the import of the spirit of the constitution raising questions as to whether it was a "metaphysical phenomenon". Other factors on judicial interpretation included English decisions, language and the constitution and legislative history and other legal arguments, he said.
In spite of these difficulties, Nana Dr Asante stated that the Supreme Court except in few cases performed creditably and had made significant contribution to the protection of the core values of the constitution and deepening and consolidating democracy and constitutionalism.
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Accra (Greater Accra) 19 March 2002 - Nana Dr S. K. B. Asante, Vice President of the Ghana Academy of Arts and Science, on Monday, stated that the Supreme Courts decision declaring the Fast Track Court unconstitutional may have far reaching implications for the administration of justice and public confidence in the judicial process.
However, the High Court decision dismissing charges against Mr Tsikata on the grounds of unconstitutionality seems proper and does not raise any constitutional questions, he said.
He made these remarks in the first of three lectures at the J. B. Danquah Memorial Lectures in Accra under the Theme, "Reflections on the constitution, Law and Development," organised by the Academy.
Nana Dr Asante stated that, although he was unable to comment on the substantive grounds for the Supreme Court decision, since they were yet to be given, "nevertheless one cannot in all candour avoid confronting some nagging and troubling pertinent questions about the judicial process".
He said the Supreme Court's sensitivity and role in ensuring the Rule of Law imposed a serious duty on the institution, adding that, the honourable members of the Bench had to be above reproach since no organ of state was immune from scrutiny in a democratic system.
The Supreme Court's decision in the Tsikata case has the effect of invalidating not only the criminal proceedings instituted in the Fast Track Court against him, but also all previous decisions and proceedings whether criminal or civil, with detrimental implications for all vested interests.
He said a legitimate question must be raised as to whether the decision had performed the judicial function of assuring certainty and order in the administration of justice or whether the judiciary had itself unleashed uncertainty and unsettled vested rights.
Nana Dr Asante stressed that the judicial process and the legal system should clarify, protect and sustain rights and other interests and not to unsettle or disturb them, emphasising that "the ordinary person looks up to the law as reliable and predictable system of protecting and not upsetting rights and other interest".
He urged Supreme Court Judges to heed the admonition of former Chief Justice Sowah that, "Our interpretation should match the hopes and aspirations of our society and our predominant consideration to make the administration of justice work". Nana Dr Asante raised questions as to what prevented any member of the Judiciary from expressing reservations about the constitutionality of the Fast Track Court.
He asserted that, "if the judiciary was prevented by law and tradition from reviewing or advising on the constitutionality of a machinery introduced by the Head of that institution, then perhaps we should reappraise the entire system of constitutional litigation".
Nana Dr Asante suggested a system, which "would enable us to test the constitutionality of a proposed measure before it becomes an accomplished fact, that apart from the traditional system of reviewing the constitutionality of an act within the meaning of Article 2, a mechanism be instituted for the express purpose of raising or testing the constitutionality of a proposed measure of the executive, or a bill to be passed by parliament".
This would have pre-empted any prospect of invalidating a whole system after it has been installed with all its disruptive implications. There was no reason why any question whether constitutional or legal about the installation of a machinery welcomed by all parties such as the computerisation of court proceedings could not be resolved in a non-contentious manner without recourse to the confrontational litigation inherent in the adversarial system, he said.
Nana Dr Asante expressed concern about the Court's failure to give reasons together with its decision, saying "again unsettling as expeditious disposition of the case with full reasons would have calmed the atmosphere".
He said with the failure, one assumes that no judgement had been written before the announcement of the decision "if so then the learned judges may have denied each other an opportunity to reflect on their colleagues opinions and to exchange ideas in a collegial atmosphere, which was an important technique for building consensus".
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