Annual Survey of African Law Cb

Volume One : 1967

Eugene Cotran, Neville N. Rubin, Eugene Cotran, Neville N. Rubin

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781317949190
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This is the first in a series of annual volumes which aim to review the principal legal developments that take place in the countries of sub-Saharan Africa. This series is intended to enable those who have an academic or professional interest in African law to keep abreast of changes in the various branches of the different legal systems of Africa.

SECTION I

Commonwealth African Countries

West Africa

CHAPTER 1

GHANA

A. N. Allott

CONSTITUTIONAL AND ADMINISTRATIVE LAW

The constitutional and political upheavals consequent on the military take-over of February, 1966, continued to have their legal repercussions in 1967, although by then many of the most important legislative adaptations (e.g. suspension of the constitution, the new Courts Decree, 1966) had already been made. Pre-eminent among the reforming initiatives of the military government were the attempts to bring the ousted President and his political supporters to book, and to restore efficiency to the publicly controlled sector of the economy.

A further series of protective custody Decrees was issued in the year under review.¹ The Kwame Nkrumah Properties Decree, 1967², provided for the repayment to the Republic of monies wrongfully paid from public funds to or on behalf of’ certain persons by Kwame Nkrumah, including payments involved in the so-called ‘Leventis deal’.

A large number of Commissions of Enquiry, further to those already established, were appointed under the Commissions of Enquiry Act, 1964 (Act 250) to investigate such diverse bodies and functions as:

the financial administration of the University of Ghana (E.I.93);

the Black Star shipping line (E.I.96);

the Diamond Mining Corporation (E.I.99);

Ghana prisons (E.I.5);

the State Fishing Corporation (E.I.6);

the Kumasi City Council (E.I.19);

the Ghana Academy of Sciences (E.I.22, E.I.43);

the organization and structure of the public services (E.I.31).

Two Executive Instruments (E.1.41, E.1.42) made further provision for the investigation and forfeiture of assets of those connected with the old regime.

Teeth have been put into the procedures for investigating alleged corrupt practices by the Corrupt Practices (Prevention) Procedure Regulations, 1967³, under which a person, against whom an adverse finding has been made by a Commission appointed under the principal Act, can be summarily dealt with by a court without any evidence being tendered for the prosecution other than the report of the Commission. The text of the operative regulations is of sufficient interest to merit reproduction here:

‘1. (1)Criminal proceedings may be instituted against any person as regards whom an adverse finding has been made by a Commission appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230) (in these Regulations referred to as ‘the Act’), by any one of the methods of instituting criminal proceedings specified in section 60 of the Criminal Procedure Code, 1960 (Act 30).

(2) A summons calling upon any such person (in these Regulations referred to as ‘the accused’) to appear before a Court in proceedings instituted under section 4 of the Act shall be in the form specified in Part 1 of the Schedule to these Regulations.

2. Upon the accused appearing before the Court, the Court shall first satisfy itself, before proceeding to deal with the charges preferred against the accused, that a certified copy of the report of the findings of the Commission together with the evidence of the witnesses upon whose (evidence the Commission relied to arrive at its decision has been sent to the accused person in accordance with section 3 (3) of the Act.

3. After the Court has satisfied itself as aforesaid, it shall state and explain to the accused the substance of the charges contained in the charge sheet.

4. After the court has stated and explained the charges to the accused as required by regulation 3 of these Regulations, the Attorney-General shall, if the Court so requests, address the Court in explanation of the case against the accused; and he shall also tender the report of the Commission concerning the charges.

5. After the Attorney-General has tendered the report of the Commission, the Court shall call upon the accused to show cause why he should not be convicted and sentenced according to law for the commission of the offence charged and the court shall hear the accused if he desires to be heard and any additional witnesses the Court may allow him to call to give evidence on his behalf under section 6 (2) of the Act.’^3a

Bringing the accused before Court.

Court to satisfy itself as to pro-vision of report, etc. of Commis-sion to accused.

Charges to be stated and explained to accused.
Address and tenderii of report by the Atto ney-General

Accused to show cause.

The Criminal Procedure Code, 1960 (Act 30) applies to proceedings under the Regulations, with the substantial exceptions of those provisions dealing with pleading by the accused, committal for trial, and procedure at the trial.

By the Armed Forces Act, 1962 (Amendment) Decree, 1967⁴, the offence of subversion was re-defined specifically with reference to the prevention of any counter-coup aimed at the overthrow of the National Liberation Council; and the offence as defined was made triable by a special Military Tribunal. The definition of subversion in the Decree is sufficiently wide to be of interest:

The offence of subversion.

‘1. (1) A person shall be guilty of the offence of subversion who -

(b) prepares or endeavours to overthrow the Government by subversion, unlawful means; or

(c) prepares or endeavours to procure by force any alteration of the law or the policies of the Government; or

(d) prepares or endeavours to carry out by force any enterprise which usurps the executive power of the State in any matter of both a public and a general nature; or

(e) incites or assists or procures any person to invade Ghana with armed force or unlawfully to subject any part of Ghana to attack by land, sea or air or assists in the preparation of any such invasion or attack; or

(f) without lawful authority (proof of which shall be on him) imports into Ghana any explosive, firearm or ammunition; or

(g) without lawful authority (proof of which shall be on him) has in his possession, custody or control in any public place or in any such place explodes, fires, lets off or discharges or detonates (as the case may be) any explosive, firearm or ammunition; or

(h) organises or incites any other person to go on a general strike likely to cause the overthrow of the Government or likely to cause hardship to the general public; or

(i) publishes any statement or report which he knows to be false and which is likely to undermine the confidence of the people of Ghana in the permanency of their newly won freedom; or

(j) kills or attempts to kill or conspires with any other person to kill any Member of the National Liberation Council or any other citizen of Ghana with a view to securing the overthrow of the Government or with intent to coerce any other citizen of Ghana into opposing the National Liberation Council or otherwise into withdrawing or withholding his support from the National Liberation Council; or

(k) knows of the commission of any of the foregoing acts but does not forthwith report it to a Member of the National Liberation Council or to any police officer not below the rank of Inspector or to a member of the Armed Forces not below the rank of Sergeant in the Ghana Army or its equivalent in the Ghana Navy or in the Ghana Air Force.’

By para. 1 (2) of the Decree it is provided that:- ‘A person guilty of subversion shall upon conviction, be liable to suffer death by shooting or a term of imprisonment not less than 25 years.’

In the sphere of diplomatic relations there were several important Decrees made in the year under review. The Consular Conventions Decree, 1967,⁵ gives effect to Arts. 31, 32, 33, 40 to 53, 55 to 57, and 58 to 67, of the Vienna Convention on Consular Relations, 1963, and provides that they shall have the force of law in Ghana. The Passports and Travel Certificates Decree, 1967,⁶ regulates the issue of passports; while the Ghana Nationality Decree, 1967,⁷ repeals, but largely re-enacts with some tidying up, the Ghana Nationality Act, 1961 (Act 62). Section 14 of the Act, which provided that any decision by the Minister should be final and unchallengeable, is, however, omitted.

New Village and Town Committee Regulations, 1967,⁸ have repealed the regulations of 1963.⁹ The Regulations (r.l) provide for the establishment of a village or town committee in every village or town. The committees are to take over the functions of the town and village development committees; and among their other functions are to deal with sanitation, to collaborate with local authorities, especially in the collection of rates, and to ‘provide a focal point for the discussion of local problems’ (r.3). The Regulations are fuller than those of 1963, especially as regards the raising of finance for local self-help projects.

In the judicial sphere there is little to report. The Magisterial Districts (Grade II) Instrument, 1966,¹⁰ lists magisterial districts presided over by a District Magistrate Grade II, as provided for by Part VI of the Courts Decree, 1966;¹¹ 85 such districts are listed in the Instrument.

Several interesting cases with a constitutional or political aspect were reported during the year. One of the most intriguing was The State v. Atto Mensah,¹² heard by Archer, J., on appeal from the Circuit Court, Cape Coast. The appellant had been convicted by the court of first instance on two counts of defaming the National Liberation Council, contrary to the Criminal Code, 1960 (Act 29), section 183 A,¹³ which makes it an offence to defame the President. By the proclamation of 1966 as amended by N.L.C. Decrees 104 and 183, the word ‘President’ in section 183 A was amended to ‘National Liberation Council’. After consulting the Memorandum to the Amendment Bill of 1961, Archer, J., held that section 183 A was passed to ‘protect the person and dignity of any individual who held the office of President’.

‘My construction of section 183 A as it now stands [with the substitution of the N.L.C. ] is that any defamatory matter written or spoken of one or more members of the N.L.C. will not constitute an offence under section 183 A unless the defamatory matter is referable to the Council as a whole.’

In The State v. W.M.Q. Halm and ors¹⁴ Charles, J., held that the court could not “pierce the corporate veil” in order to disclose that ex-President Nkrumah was the real beneficial owner in equity of £G500,000 which Nadeco Ltd. (a limited compan...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Table of Statutes and Other Laws
• Table of Cases
• Section I: Commonwealth African Countries
• Section II: Non-Commonwealth African Countries
• General Index