AG and Justice Ministry Separation, reality or dream?

President John Mills’ government was one month old on February 7 2009 after being sworn into office on January 07, 2009 but has still not made true its promise of separating the Ministry of Justice from the Attorney General’s department.

As the president still finds his rhythm and puts his full team together, he has made about a third of his much anticipated first hundred days in office.

The manifesto with which the party won the elections, promised to separate the Ministry of Justice from the Attorney General’s department, all in the name of building a better Ghana, free of corruption.

After a month in office, this pledge has not yet been fulfilled.

The president however has gone ahead to appoint an Attorney General and Minister for Justice, Madam Betty Mould Iddrisu, awaiting parliamentary approval.

But Acting Commissioner of the Commission for Human Rights and Administrative Justice (CHRAG), Madam Anna Bossman, tells Citi News the separation of the two offices is a constitutional matter and must be approached using the right processes.

She said what that what was important was for the Attorney General to have the will to prosecute colleagues if they go wrong.

“The important thing is tat the Attorney general of the independent be given free range to prosecute people within the government or within the cabinet or even pubic officials without being fettered because they may be his colleagues”, she said.

Analysis

The A-G performs the following functions:

1. He initiates and prosecutes criminal offences in the Republic of Ghana,

2. He initiates and prosecutes all civil cases on behalf of the republic,

3. He represents and defends the republic in civil cases against it,

4. He drafts laws for the Republic,

5. He reviews international agreements and negotiates contracts on behalf of the republic,

6. He advises the President on legal matters referred to him (Article 88 of Constitution)

7. The A-G does all these duties with the staff in his office.

CRITICAL ASSESSMENT OF PERFORMANCE OF THE A-G

May I state at the outset that reference to A-G does not mean the current holder of the office; I am referring to the office, not the person.

The first concern is that the A-G is overwhelmed with work. His lawyers (Attorneys are few. They resign too often. They resign, because as lawyers, they have a ready market for their skills and do not tolerate administrative clumsiness, infighting, cronyism and low salary.

He has lost so many experienced senior Attorneys. Predictably, the resignations and inadequate number of lawyers compromise the administrative efficiency of the A-G and that affects the quality of administration of justice in the country and also has an impact on the observance of the rule of law in Ghana.

CRIMINAL JUSTICE

By law and authority of the A-G, the police prosecute criminal cases in court on its behalf. They handle most cases, with the exception of murder, armed robbery, defilement, narcotic and treason. The police refer dockets on such cases to the A-G for “advice”.

Trouble! Because the Attorneys are few, the dockets keep so long at the A-G’s office that when the “advice” to prosecute or not arrives at the police, so many intervening elements have upturned the landscape. The witnesses cannot be located, the police investigator is dead, transferred or is on course, the accused is dead.

If the accused is alive, he might have been in custody from anything from one year to 15 years, without trial! Tell me whether this is what we call rule of law?

It is hereby proposed that one of the major re-definitions of the A-G’s duties that must take place is for the police to be allowed by law to prosecute all crimes.

When say murder is committed, the police have fresh and “hot” information which could be used to mount a successful prosecution in a short time, especially when the suspect has been arrested. What stops the police from prosecuting such cases?

NEED FOR RE-DEFINITION

The police must have the option to refer cases to the A-G when the need arises, due to one complicated thing or another.
Flowing from the above, the police need further training on all aspects of crime to enable them prosecute them and not the A-G. Second, the police need to recruit more lawyers or sponsor more police personnel to study law. Of course, the A-G can retain plenary powers to intervene and take charge of a case, depending on its political sensitivity or complexity of the law.

A second major area for redefinition of A-G’s duties relates to the prosecution of civil cases on behalf of the republic. The A-G has taken on too much! All cases of the Ministries, Police, Fire Service, Prisons and several other Government Organisations are handled by the A-G.
In most cases, the A-G does not actually know what went wrong before a case arose and it has to seek information from the parent ministry before deciding on what to do. When the information is not forthcoming, or it is not detailed enough, the A-G gets paralysed.

Since the Attorneys are few and the cases are many, A-G is incapable of expeditiously resolving the cases before it and inefficiency intervenes to make nonsense again of the rule of law. This is because time is of essence in the administration of justice.

The proposal on the redefinition of A-G’s duties is for the A-G to shed off the omnibus responsibility for dealing with all civil cases involving the republic. The Government must realize that things have changed in the country.

The population has increased, portfolios of ministries have widened, people have become more rights-conscious, management has become more complex and huge amounts of monies are being transacted.

It would, therefore, be sensible for ministries and all other Government Organisations to have their own internal team of lawyers to handle their cases and not the A-G. Again, as with criminal cases, the Government could reserve for itself critical cases impinging on the republic, as, for instance, international contracts of procurement, financing or project execution the A-G must be a party to the negotiation or signing of documents to protect the national interest.

A third significant need for the re-definition of the A-G’s duties deal with payment of compensation arising from court cases.

This is a very sensitive area, involving persons who are dead and whose beneficiaries are claiming against the republic or persons suffering from personal injuries.

By operation of Section 15 (2)(a) of the State Proceedings Act 555, the Accountant-General is informed of compensation payable to persons in whose favour the court has ordered compensation to be paid.

The A-G’s notified, as a matter of course. Whatever input the A-G must make is vitiated by the same weakness spoken of delays. It is inordinate and vexatious. This is unacceptable and must cease through redefinition of duties.

SEPARATE THE OFFICE

It is time Ghana’s Parliament insisted on the separation of the two offices and disallowed the President from merging the two again. It is not good for the effective governance of our country.

We are now in a position to talk of the Minister for Justice. When the position is separated from the A-G, the office holder would be part of Government and have general jurisdiction over all matters pertaining to the administration of justice in Ghana, to wit: The Judiciary, the Police, Prisons, the A-G’s Department.

With respect to the Judiciary, notwithstanding its independence, it draws its monies from the consolidated fund, so that implies the Government interest of a sort.

The expansion of the Judiciary and provision of court buildings and facilities must be the responsibility of the Minister for Justice, not the Chief Justice!

We have confused roles and duties to such an extent that the Chief Justice is overburdened with perfunctory administrative decisions and work that should not be his or her duty at all.

Why should a Chief Justice be looking for accommodation for judges and hiring premises for courts? Is that how to administer a country?

The Ministry should have all the data it requires from the Judiciary, then plan ahead for the provision of facilities needed to make the administration of justice in Ghana a smooth and an enjoyable one and not drudgery.

Second, the struggle by the Attorney-General to retain Attorneys would be much easier, if the ministry looked at their conditions of service holistically, then work at providing them with the best.

Third, it is the responsibility of the ministry to look at all the operating laws and ascertain those useful and those obsolete and take remedial steps to improve the laws. The A-G cannot perform this duty, with all the “onerous litigious cases” on his head.

Last, by co-ordinating the Police, Prisons and the A-G, the ministry would remove all impediments in the way of efficient administration of justice in the country. As of now, the Ministry of the Interior, whose orientation is different from the Ministry of Justice, is responsible for Prisons and the Police.

However, there are aspects of the work of the Police and the Prisons that fall exclusively within the domain of the Ministry of Justice, as they affect the rule of law and human rights of persons in the grip of the law.

In order to effect the proposals here, the Constitution and all other supporting legislative laws must be amended for the Government to unburden itself of the administrative incubus it has created by the present scheme of affairs where the A-G does all its work.

It is stifling the rule of law in Ghana and creating a monstrous inefficiency.

Until the reformation of the A-G takes place, the office owes the nation the duty of working expeditiously on matters placed before it and showing sensitivity to the injured feelings of persons who have placed their trust in their professional competence as lawyers and persons of integrity.

Source: Culled from “Daily Graphic” of Tuesday, January 22, 2008.