OccupyGhana® Presents An 11-Point Plan For A Comprehensive Emergency Response System In Ghana

OccupyGhana® Presents An 11-Point Plan For A Comprehensive Emergency Response System In Ghana

17th JUNE 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® PRESENTS AN 11-POINT PLAN FOR A COMPREHENSIVE EMERGENCY RESPONSE SYSTEM IN GHANA

OccupyGhana® joins the nation in grieving for Mr. Anthony Opoku Acheampong, reportedly refused care at seven hospitals in Greater Accra, due to the phenomenon of “no beds.” His desperate family watched him die in a car in front of Lekma Hospital in Teshie, in the early hours of 10 June 2018.

That, by all standards, is utterly unacceptable. It is also inhumane and goes against every ounce of human dignity and respect for life enshrined in the Constitution of the Fourth Republic. Unfortunately, Ghana’s media is rife with such stories.

OccupyGhana® believes that this “No Beds” excuse is a cowardly cop-out, hiding a much deeper problem assailing Ghana’s healthcare system.

While it may be true that a hospital like Korle-Bu Teaching Hospital, which receives the bulk of emergency cases, may suffer from lack of beds, that does not wash where some of the smaller and private hospitals are concerned.

There may be a variety of reasons for hospitals to turn patients away, legitimate or illegitimate. These can include:

  • a true unavailability of beds;
  • lack of the expertise to deal with emergencies due to (i) lack of medical personnel, (ii) medical personnel with inadequate experience to treat said emergency (e.g. trauma) and/or (iii) lack of necessary equipment;
  • the unwillingness of medical personnel to put in the time and effort to help patients;
  • the fear that the emergency case will take up much-needed resources for a long time in smaller hospitals;
  • the fear that the patient would be unable to pay for the care given; and/or
  • the fear that sub-optimal care given in sub-optimal conditions could lead to a bad outcome and lawsuits against the medical facility and personnel.

But none of these gets at the core issue.

The appalling reality in Ghana today is that the country has no functioning and coordinated Emergency Response System. People who need emergency care simply cannot call for help. Even if they can reach a health facility by telephone, there are only 54 – yes, FIFTY-FOUR – ambulances covering a nation of almost 30 million people.

Ghanaians have no choice but to transport their ill loved ones in cars or taxis looking for a hospital where they will be accepted. We see them in traffic almost every day. The apparently callous reluctance of Ghanaians to get out of the way may be as much due to our selfishness, as it may be due to the public not recognising a taxi blowing its horn as an emergency. It may also be due to the indiscriminate and irritating use of sirens especially by politicians.

In such a scenario, most hospitals could be overwhelmed by emergency cases or even surprised by cases that are uncommon in that facility. It is also quite possible that a lot of time is lost until the right hospital is found or a hospital found with beds, further decreasing survival chances of patients.

There is an immediate need for a functioning and co-ordinated Emergency Response Service with a simple telephone number that every Ghanaian can remember. A recent poll shows that only 5% of the population is currently aware of the emergency number for an ambulance.

The Emergency Response Service should connect the caller to a Command Centre set up to direct calls to an ambulance service that is in touch with all medical facilities, and connect to the police, the fire service and NADMO.

OccupyGhana® calls for an immediate action plan to be drawn up by Government to prepare an Emergency Response Service fit for a 21st Century Ghana, within two years. The following points must be included and fully-funded:

  1. An Emergency Response Service with a Command Centre that fields calls, receives data from the hospitals about bed counts and is able to send out ambulances and paramedics to assist, stabilize and if needed transport patients to appropriate hospitals. One simple emergency number is what we need;
  2. All hospitals should be able to care for emergency cases, but in the meantime, designate some hospitals as “Fit to Handle Emergencies;”
  3. Government must shore up the NHIS to allow for every Ghanaian to be given emergency care irrespective of the ability to pay;
  4. Hospitals designated as “Emergency Hospitals” should be equipped properly, including the ability to give Triage care. Equipping hospitals also means making sure they are well stocked with needed emergency drugs. This prevents delays in care that occur as family members go around town hunting for drugs to buy so that their loved ones can be treated in emergencies;
  5. There should be more community hospitals that can provide immediate basic primary and preventative care;
  6. The law should prevent hospitals turning patients away without proper reason and a strategy for dealing with that patient’s care in another facility. Facilities and personnel who refuse to offer care to patients with life-threatening conditions should face sanctions;
  7. All doctors and nurses should be trained to stabilise to a basic level emergency patients, irrespective of the availability of beds and full emergency facilities;
  8. Even though lack of beds is not the only factor contributing to the refusal of care to sick Ghanaians at our hospitals, it is an important contributory factor. In a country where in-patient care still trumps out-patient care for a lot of ailments, having 0.9 patient-beds per 1000 people is on the low side. There are several unfinished hospitals like the UGMC that could add much-needed beds to the total count and alleviate some of the pressure. Even though we support the numerous calls to open these hospitals expeditiously, we also call on government to put in place mechanisms to optimize bed usage in the existing ones or else we would simply have more hospitals that refuse care because of “No Beds;”
  9. Enough paramedics should be trained to be help stabilize and transport emergency cases to hospitals;
  10. There should be programs to educate the population on how to differentiate a true emergency from an illness that can be treated non-emergently. A good triaging system as part of an emergency response service should go a long way to help with this; and
  11. Last but not least, we ask for sufficient ambulances to cover a population of 30 million.

We are mindful of the economic challenges posed by this proposal. But that is no excuse. If Ghana can afford hundreds of government 4×4 vehicles and police escort riders to push them through traffic, then Ghana can afford adequate ambulances to deal with emergencies, AND address our list of points made here.

The tragic and unnecessary death of Mr. Anthony Opoku Acheampong is already blood on our hands. Let us not indict ourselves further; this should be the catalyst for finally building a Ghanaian healthcare service of which we can all be proud.

It is time for Ghana to have a 21st Century Emergency Response System. It is time for the government to ensure this, for medical personnel across the country to deliver the best version of it and for the Ghanaian population to demand it as of right.

Yours in service of God and Country.

OccupyGhana®

OccupyGhana® Press Statement On Issues Arising From The “Kelni GVG Contract”

OccupyGhana® Press Statement On Issues Arising From The “Kelni GVG Contract”

3rd JUNE 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA PRESS STATEMENT ON ISSUES ARISING FROM THE “KELNI GVG CONTRACT”

OccupyGhana® has followed the ongoing debate concerning the 27th December 2017 contract between the Ministries of Finance and Communications on the one part, and a company called Kelni GVG on the other part, to provide “a common platform for the purpose of revenue assurance, traffic monitoring, fraud management and mobile money monitoring” (“Contract.”)

DEMANDS

After our review of the Contract, facts available to us and the law, our key demands, as citizens of Ghana, are as follows:

  1. The Finance Minister, if he has not done so already, immediately lays before Parliament for passage, the Legislative Instrument required to properly put in place the monthly Communications Service Tax returns required to be filed by the service providers;
  2. (i) The deployment of the Revenue Assurance Module under the Contract should be limited to access to the service providers’ billing systems and nothing more or less,

(ii) Detailed investigation and audit by an independent expert, of the mechanism to be deployed under the Contract, particularly the Revenue Assurance, Specific Voice and Geographic Location Modules, to ascertain and ensure that any snoop and tap capability that is prohibited by law, does not exist, and

(iii) Assurance by the Government that the Mobile Money Monitoring Module under the Contract is not a wholly unnecessary replication of a regulatory function that is vested by law in, and is currently being performed by, the Bank of Ghana; and

  1. Enforcement of the law on the use of Internally Generated Funds of the Ghana Revenue Authority and the National Communications Authority for their expenses only, and if considered necessary, make the two entities direct parties to the Contract so that they have a legal say in how the Contract is performed, in their own right.

These demands arise from three primary concerns, namely, (1) how the Communications Service Tax is to be collected and paid to the Government, (2) whether the deployment of the monitoring mechanism under the Contract breaches or has the potential to breach the privacy protections under both the law and the Constitution, and (3) whether the payment of contract sums under the Contract, not by the Government (which is the party to the Contract) but, directly by the Ghana Revenue Authority (“GRA”) and the National Communications Authority (“NCA”) also breaches both the law and the Constitution.

COMMUNICATIONS SERVICE TAX

The 2008 Communications Service Tax Act provides that users of electronic communications services should pay a 6% tax. The mode of tax collection is clear: “The tax shall be PAID TOGETHER with the electronic communications service charge payable to the service provider by the user of the service.” This simply means that the user pays tax on the value of the voucher/service at the point of purchase, irrespective of whether the distributor sells or the customer uses or does not use what is purchased. The service provider collects the tax and then pays it to the GRA.

The law then provides two processes for verifying/auditing the tax collection and payment. The first is by the service providers filing monthly CST returns with the GRA. The returns form is to be designed by the Minister for Finance to provide information that the Minister deems necessary for those auditing purposes, by way of regulations under a Legislative Instrument. We are informed that the Legislative Instrument is yet to be passed, ten years after the law was passed. We however understand that in lieu of the LI, the GRA has designed its own returns form that the service providers routinely file.

The second verification/audit process is by way of the service providers giving the Government “physical access” to some “node” in their billing systems or an equivalent point, described by some as “Real Time Monitoring.” While some industry watchers and actors fault the wording of the law in this regard and describe it as “vague,” we believe that the intention of the framers of the law is obvious: the Government must be given access to an equivalent point in the providers’ networks, but ONLY to where the latter’s billing systems are connected. We do not see how this simple understanding presents any problems.

We also note that the Contract has four Modules, namely (i) Revenue Assurance, (ii) Specific Voice, (iii) Geographic Location, and (iv) Mobile Money Monitoring. We think that the Revenue Assurance Module should be easy to implement, which would comply with the law, as long as all that the Government has access to are the billing systems. We are concerned that the Specific Voice Module (“traffic monitoring”) raises questions about the potential to monitor the content of communications in breach of the Constitution and statute. We also need to be convinced that the Geographic Location Module (“fraud management”) is really relevant to the work that the Government has to do, and does not breach the Constitution and statute. And we have doubts that with the launch of the mobile money interoperability platform that is monitored by the Bank of Ghana in real time, a parallel Mobile Money Monitoring Module is really required.

Thus while we appreciate the Government’s probably well-intended aims under these contractual modules, it goes without saying that the modules may only be implemented in accordance with the law. The law as it stands now provides for the filing of monthly returns and giving access to billing systems only. Anything less than this would be in breach of the law. But, more importantly, anything beyond this would also arguably be in breach of the privacy protections afforded by the Constitution and statute.

And it is to this that we now turn.

PRIVACY ISSUES

We are very concerned about the privacy issues that this Contract raises. The privacy of communications and correspondence is guaranteed by Article 18(2) of the Constitution, subject only to the qualifications provided in either that Article itself or Article 21(4). It is in the light of these, and following concerns expressed when the idea of ‘monitoring’ international inbound traffic first came up, that the 2008 Electronic Communications Act was amended in 2009 to provide expressly that whatever “mechanisms or measures” are instituted “shall not have the capability to actively or passively record, monitor or tap into the content of any incoming or outgoing electronic communication traffic, including voice, video and data existing discretely or on a coverage platform whether local or international.”

Upon similar concerns being expressed with the introduction of this so-called “Real Time Monitoring” in the 2013 amendment of the 2008 Communications Service Tax Act, Parliament provided again that the “monitoring mechanism” also “shall not have the capability to actively or passively record, monitor, or tap into the content of any incoming or outgoing electronic communications traffic, including voice, video or data existing discretely or on a converged platform whether local or international.”

Parliament, as if to shore these provisions up and being cognisant of the provisions in Article 18(2) of the Constitution, also passed the 2012 Data Protection Act to provide what is arguably the widest privacy protections known to the law, of data, which the Act defines to include information that “is processed by means of equipment operating automatically in response to instructions given for that purpose,” “recorded with the intention that it should be processed by means of such equipment,” “recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,” or simply “forms part of an accessible record.”

Our argument is that however laudable the government’s intentions are for entering into the Contract, and whatever assurances and pledges we receive that the government does not intend to snoop on or tap into our communications and correspondence, the law is simply that whatever mechanism is being deployed “SHALL NOT HAVE” snoop or tap capability.

We have seen a Press Statement issued by the Chief Executive Officer of the Ghana Chamber of Telecommunications dated 1st June 2018, and which says emphatically as follows:

“Our informed position is that the current architecture from the NCA and Kelni GVG does not conform to these design standards. The architecture does not provide our customers the privacy of their communication that the constitution guarantees…”

The said Press Statement then lists the following “challenges”:

“a. the current architecture seeks to connect beyond the equivalent point in the network where the network providers’ billings systems are connected; [and]

  1. The monitoring mechanism has the capability to actively or passively record, monitor or tap into the content of any incoming or outgoing electronic communications traffic such as voice. The proposed connection point will risk exposing content of voice traffic.”

If these statements are true, then the deployment of the mechanism with the statutorily prohibited snoop and tap capability, is a breach of the law and the Constitution. Then we would agree with the Chamber that

“The voice transaction damp(sic) for the revenue assurance tool should be enough without risking individual customer privacy. We are minded that the law does not talk about intent but capability, which the current architecture processes (sic).”

Having said that, we must however express our disappointment that the members of the Chamber, with such a strong and informed position on the matter, neglected or failed to commence legal action against the government to have this matter resolved once and for all by the courts within the 7-day limit imposed by law. That was a letdown.

However, moving forward, we must point out that in Ghana, the 2012 Data Protection Act protects both “data” and “metadata,” i.e. data that provides information about other data. This falls under the definition of “personal data” as “data about an individual which can be identified from the data or other information in the possession of or likely to come into the possession of the data controller.” Thus in Ghana, a person’s voice communications as well as the fact that the person communicated with another person from a certain location and for a certain period (which is the kind of information that the “Real Time Monitoring” would have access to), are entitled to the same level of privacy protection under our law.

As a matter of interest, while industry watchers are awaiting a decision of the US Supreme Court on whether the US government’s “acquisition of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain,” we in Ghana have no such problem.

Accordingly, any system that obtains both data and metadata has to comply with the law.

In this regard, we must register our disappointment also at the profoundly deafening silence of the Data Protection Commission in all of these matters. It is important that when such issues arise, statutory bodies entrusted with responsibility to protect our rights act proactively in investigating them, speaking out and making their relevance felt by educating the public.

PAYMENT OF CONTRACT SUMS

We note that neither the NCA nor the GRA is a party to the Contract. Yet they are “nominated” by the Ministry of Communications and the Ministry of Finance, respectively, as their “implementation agents.” And we are also informed that the money to be paid to Kelni GVG under the Contract (“Contract Sum”) is to be paid by the NCA and GRA in a 40% to 60% divide.

We are concerned that the payment of the Contract Sum is not part of the “expenses” of either the NCA or the GRA, and therefore cannot be paid directly out of the Internally Generated Funds of either entity. Both the GRA and NCA are established by law as bodies corporate “with perpetual succession and a common seal and may sue and be sued in its corporate name.” Granted that they are authorities of the State, they are considered separate and distinct from the Government. Each of them has a Board that is, by law, the “governing body of the Authority.”

Although each of them is statutorily under the supervision of a relevant Minister of state, the law is careful to set out and delineate in specific detail, the extent and bounds of that supervision. The general rule is that the Authorities and their Boards are bound by only written “Policy Directives” issued by the relevant Ministers. And it should be blindingly obvious that those “Policy Directives” cannot contravene the law or the Constitution.

The law is clear on what the moneys that either the GRA or NCA receives are to be used for. They are only to retain specific portions of those moneys specifically for their “expenses” only, and the remainder “SHALL” be paid into the Consolidated Fund. Any use of those moneys on expenditure that does not fall within the “expenses” of the entities is illegal. Any use of the government’s portion of those monies by any person including the Government itself without the moneys first being paid into the Consolidated Fund is a breach of Article 176 of the Constitution. We reiterate that neither the Ministry of Finance nor Ministry of Communications has the power to issue “Policy Directives” that breach these provisions.

We do not think that the Ministries of Finance and Communications “nominating” the GRA and NCA respectively as agents under a contract with a private entity falls under the power to issue “Policy Directives.” We do not think that simply on account of that contractual provision, the GRA and NCA become bound to make the payments of the Contract Sums under the Contract that neither of them is a party to. We do not think that paying the Contract Sums is part of the legitimate “expenses” of the GRA and NCA, non-parties to the Contract. We would add that there is a complete lack of privity of contract, and that the Contract cannot impose obligations arising under it on any person or even an agent, except the parties to it.

It is time to end the situation where successive governments deliberately turn a blind eye to the requirement for the payment into the Consolidated Fund of moneys that particularly the NCA is bound to pay, which then gives to government the illegal opportunity to spend those moneys completely “off-balance sheet,” on the blind side of Parliament and the Auditor-General, and in breach of the Constitution.

We would add that any such spending of monies that properly belongs to the Consolidated Fund, being contrary to law, becomes liable to the disallowance and surcharge powers of the Auditor-General under Article 187 of the Constitution. It must be noted that these powers have been interpreted by the Supreme Court on 14th June 2017 in OccupyGhana v. Attorney-General (Suit No. J1/19/2016) as follows: “the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law.”

OTHER RELEVANT ISSUES

In this statement, we have limited ourselves to what we perceive to be the legalities of the matter. We do not examine the larger issue of whether any of this is indeed the best practice in countries with more experience and success in telecom regulation. We are still examining that point.

We also do not address the issue of value for money. Although we note a reduction in the total contract sum from the previous or existing contracts, we believe that we can only conduct a fair and accurate review when we have seen and examined the Bill of Quantities and other relevant documents that were submitted by the winning bid. We are therefore applying to the Public Procurement Authority for those and may issue a statement on them after we have reviewed them.

CONCLUSION

It is in the light of the foregoing that we have made our demands, which we consider reasonable under the circumstances. We expect the Government to accede to these demands to forestall any need to resort to court to resolve the issues raised.

Yours in the service of God and Country

OccupyGhana®

OccupyGhana® Expresses Concern Over Clashes Between Board Chairpersons And Chief Executives Of Government Institutions

20th MAY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® EXPRESSES CONCERN OVER CLASHES BETWEEN BOARD MEMBER AND CHIEF EXECUTIVES OF GOVERNMENT INSTITUTIONS

OccupyGhana® is increasingly concerned about the situation where persons appointed to chair the boards of Statutory Corporations, Commissions, Services and Authorities, and government-controlled companies, assume executive powers that they do not have under any law, holding themselves out as some sort of ‘Super Chief Executives’. We are concerned that if this is not checked, it would create unnecessary clashes between board chairpersons and the Chief Executives or Managing Directors and sometimes even the staff of the organisations, which would be inimical to the relevant state entities and defeat all corporate governance principles.

No board chairperson of any of the entities mentioned above occupies an executive position as a matter of course. An executive position exists where a board member also holds an office for profit within the organisation or is specifically designated as such. That concept does not exist generally or by default under Ghana law, except, for instance, in the specific case of the State Enterprises Commission where the law makes specific reference to an “Executive Chairman” and “Executive Directors.” That Executive Chairman is specifically vested with responsibility for the day to day administration of the Commission, subject to general policy directives from the Board. He and the executive directors constitute the Executive Committee of the Commission.

The primary function of Board chairpersons is chair meetings of the Boards. They are not chairpersons over the entities. Thus no board chairperson is entitled to monthly remuneration, an office, official accommodation, official vehicle, etc., and to the extent that any such facilities have been, or are being, provided to board chairpersons, they are unlawful. Indeed, by law, all allowances paid to and benefits received by members of such boards have to be approved by the relevant Ministers, and we do not believe the Ministers would approve such allowances and benefits to non-executive board chairpersons.

Further, except where the laws or relevant company regulations expressly state otherwise, board chairperson have NO POWERS outside board meeting. By law, they only convene ordinary and special meetings of the boards and preside over those meetings. They are appointed by an appointing authority, by the board itself from among its number (e.g. Council for Indigenous Business Associations) or as the nominee of a specific entity (e.g. Auctioneers Registration Board).

In some instances, specific legal provision is made for the board chairpersons to:

  1. sign the minutes of board meetings (e.g. GNPC);
  2. notify the appointing authority of vacancies on the board (e.g. Ghana Highway Authority);
  3. authenticate the application of the seal of the corporation;
  4. sign contracts on behalf of the corporation;
  5. have a casting vote in the event of a tie/equality of votes at a meeting (e.g. Atomic Energy Commission, CSIR, Forestry Commission) although this applies to anyone who presides over a meeting in the absence of the chair;
  6. be present before a meeting is quorate (e.g. Council for Law Reporting), although sometimes it is the Chief Executive who has such quorate presence (e.g. Ghana Highway Authority);
  7. have a specifically delegated power by the Board to appoint staff (e.g. Council for Law Reporting);
  8. serve on the Executive Committee of the entity (e.g. CIBA);
  9. sign certain payments (e.g. from the National Environment Fund set up under the Environmental Protection Act);
  10. sign specific transactions (e.g. a Free Zone development licence);
  11. receive copies of internal audit reports (e.g. Ghana Education Trust Fund, the various Teaching Hospitals, GNPC); and/or
  12. submit an annual report to parliament (e.g. PURC).

In one instance, specifically COCOBOD, the law expressly limits any role of the board chairperson during the intervals between board meetings to overseeing the implementation by the management of policy decisions taken by the board, only. Even then the law is careful to add that the board chairperson does not have any other functions except as conferred by law.

Particularly with respect to the boards of institutions whose heads are guaranteed independence under the Constitution, such as the Audit-Service and the Auditor-General, it is critical that the boards and board chairpersons are not allowed to assume unconstitutional powers of control and direction.

In respect of companies, the board chairperson presides over general meetings and board meetings, signs minutes of meetings over which (s)he presides, has a casting vote where there is an equality/tie of votes at directors’ meetings, and may permit persons other than members, directors, the secretary and auditors of the company to attend general meetings. The board chairperson has no executive or other powers, except where the board specifically authorises him to exercise some its powers, or the Regulations of the company provide for it.

We think that the appointing authority in these instances, the Government, should encourage its appointees to abide by the law and not assume powers that they do not have. Going forward, we recommend that persons appointed to such offices be required to undergo some short courses at GIMPA or some other institution to acquaint themselves, not only with the law governing the entities on whose boards they are to serve, but in corporate governance principles among others.

Yours, for God and Country,

OccupyGhana®

OccupyGhana® Condemns And Demands Action On Reported Military Assault On Police Personnel In Tamale

17th MAY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CONDEMNS AND DEMANDS ACTION ON REPORTED MILITARY ASSAULT ON POLICE PERSONNEL IN TAMALE

OccupyGhana® wishes to register its extreme concern and disgust at the criminal assault reportedly inflicted upon police officers by elements of the Ghana Armed Forces in the Tamale Metropolis. The police officers, we understand, were simply going about their legitimate policing duties only to be pounced upon and beaten up by soldiers.

This apparently all-out assault on police officers, some of whom were at post guarding National Assets such as the Bank of Ghana and other financial institutions in Tamale, leaves a terrible impression of the Armed Forces. We are appalled that any security institution would misuse and abuse the powers bestowed by the Constitution and facilities provided by our taxes in such a depraved manner.

We are also concerned that this impunity continues because in the face of a history that is replete with such attacks on society by military personnel, there has been precious little to no reports of the actual prosecution, conviction and sentencing of perpetrators. This has emboldened clearly renegade behaviour that must be addressed and curtailed forthwith.

We call upon the Government of Ghana, the Minister of Defence, the Minister of National Security and the Chief of Defence Staff to immediately cause the arrest of all the perpetrators of this dastardly crime against the Police Officers and surrender them for prosecution before our civil courts to the fullest extent permissible by the Laws of Ghana. This will send a clear signal to others with the same violent propensities that wearing a uniform and bearing arms provided with our tax monies is not an excuse to misbehave and visit violence on the rest of us.

Any attempt to subject this act to some “internal” disciplinary procedure to which we would not be privy would be unacceptable and signify official complicity of what is frankly grave criminality

We wish to issue a two-week ultimatum to the Government to get to the bottom of this matter and to announce to Ghanaians a clear roadmap that punishes the wrong and does right by the victims. We also expect the institution of measures that would prevent this from happening in future and ensure that the Military never forgets that its true place under a democratic, constitutional dispensation is under civilian governance.

Yours, for God and Country,

OccupyGhana®

OccupyGhana® Calls For A Stop On Physical Attacks On Journalists And For The Prosecution Of Offenders

OccupyGhana® Calls For A Stop On Physical Attacks On Journalists And For The Prosecution Of Offenders

9th MAY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR A STOP ON PHYSICAL ATTACKS ON JOURNALISTS AND FOR THE PROSECUTION OF OFFENDERS

OccupyGhana® wishes to register its total abhorrence at the penchant of persons, particularly those in political authority or with political connections, to assault and batter journalists who are simply doing their work.

The recent reported assault on Ohemaa Sakyiwaa Ahwenepa, a reporter of Accra-based Adom FM by one Hajia Fati, a known member and operative of the New Patriotic Party (NPP) at that party’s headquarters in Accra is reprehensible and ought to be condemned outright. In addition, the perpetrator has to be dealt with to the fullest extent permitted by law.

OccupyGhana® is concerned that these attacks persist because of the failure, neglect or refusal to prosecute offenders. This has created a culture of impunity that has unfortunately infected and engulfed even the Ghana Police Service, when one considers the recent similarly barbaric, senseless and un-called for attacks on another journalist, Iddrissu Latif also of the Multimedia Group, while undertaking his legitimate journalistic duties.

Examples of such attacks are a legion. However, one thread that runs through them is the non-prosecution of the perpetrators. Added to this is the apparent lack of interest or inability of the victims to commence and sustain civil legal action against their assaulters and the owners of the premises where these assaults occur, particularly the political parties.

We are scandalized by the time it took the New Patriotic Party to publicly condemn the actions of Hajia Fati; and when that came, it was markedly forced, laboured and half-hearted. The NPP appears oblivious to the fact that it has a legal obligation to protect journalists and other persons who they allow into their premises to conduct legitimate business.

OccupyGhana® is heartened to learn about a report of the assault having been filed with the police. We are glad that Hajia Fati has been invited for questioning. We would encourage the Multimedia group to also commence civil proceedings against both Hajia Fati and the NPP, and to leave no stone unturned in ensuring that justice is done in this matter

In the same vein, we are demanding full disclosure from the Ghana Police Service on its investigations into the assault of Iddrissu Latif, and for the relevant consequential legal processes to take place.

These attacks on journalists must stop forthwith. An attack on journalists going about their legitimate duties is an attack on the entire Ghanaian citizenry. It must not be tolerated! The media as the ‘fourth estate of the realm’ play an integral role in the lives of the state and its peoples. Any party or group that seeks to thwart their work have no right to institutional existence under the Fourth Republican Constitution.

In service for God and Country.

OccupyGhana®

The Defence Cooperation Agreement Between Ghana And The Usa – Matters Arising

The Defence Cooperation Agreement Between Ghana And The Usa – Matters Arising

9TH APRIL 2018

OCCUPYGHANA® PRESS STATEMENT

THE DEFENCE COOPERATION AGREEMENT BETWEEN GHANA AND THE USA – MATTERS ARISING

OccupyGhana® has followed the debate over Parliament’s ratification of the Agreement Between the Government of the United States and the Government of Ghana on Defence Cooperation, the Status of United States Forces and Access to and Use of Agreed Facilities and Areas in the Republic of Ghana (“Agreement.”)

We have noted three primary reactions to the Agreement, namely those who (i) object to the Agreement in its entirety, (ii) think that we could have obtained better terms from the United States, and (iii) do not object to the Agreement at all. OccupyGhana respects all of these views.

We would however wish to raise three key issues:

First, we appreciate the fact that this Agreement was properly sent to Parliament for ratification. This is probably only the third time in the history of the Fourth Republic that such an agreement has been sent for parliamentary ratification. The first was the 2003 Bilateral Agreement between the Ghana Government and the Government of the United States Regarding the Surrender of Offenders to the International Criminal Court. The second was the GITMO-2 Agreement, which was only sent to Parliament for ratification after litigation and an order to do so by the Supreme Court.

OccupyGhana® believes that no such agreement, if required to be ratified by Parliament, should be assumed to be confidential. While deliberations over matters of defence and national security may require confidentiality, the starting point for agreements between states, which are of the utmost public interest, should be that where such agreements are to be ratified by Parliament, they would be made available to the public. Where confidentiality is genuinely required, we should ensure that firstly, such documents are formally given the requisite status under the State Secrets Act, 1962 (Act 101), and secondly, the security classification of such agreements is specifically agreed upon in negotiations so that the state-parties to them would have a uniform and reciprocal treatment of such documents in their respective jurisdictions.

Second, with the terms of the Agreement having been made public, there was no need for Parliament to have rushed its ratification. The speed to ratify the agreement on the last day of sitting and at a time when the vast majority of Ghanaians were realizing probably for the first time that we have such agreements, was not right. Ghanaians deserved more time to debate and assimilate its terms, which would have better informed our support of or opposition to it. The night time, acrimonious ratification proceedings was unfortunate. In addition, we cannot help but express our disappointment that the Right to Information Bill has not attracted this sense of urgency from this or any Parliament.

Third, we note that the Agreement, although ratified by Parliament, will not immediately come into force. According to article 19 of the Agreement, it will only come into force when the parties to it have exchanged the required diplomatic ‘Notes.’

This third issue raises the question whether the portion(s) of the Agreement that purport to grant diplomatic status, privileges and immunities to the members of the US Military, can come into force simply with parliamentary ratification or whether a Legislative Instrument is required to be laid in and passed by Parliament before the status, privileges and immunities may be applied to members of the US military covered by the Agreement.

Ghana passed the DIPLOMATIC IMMUNITIES ACT, 1962 (ACT 148), according to section 1 of the Act, to give “the force of law” to the receiving state obligations under “[a]rticles 22, 23, 24, and 27 to 40 of the Vienna Convention (which regulate the immunities and privileges, including exemption from taxation, freedom of communication, inviolability of premises and immunity from civil and criminal jurisdiction, to be conferred upon diplomatic agents.)”

These privileges and immunities apply automatically to “diplomatic agents” (which would include military attaches) and not to any other persons or organizations, including members of visiting military forces, who are ordinarily covered by the Visiting Forces Act, 1962 (Act 117). For all such other persons or organizations, section 2 of the Diplomatic Immunities Act demands that “[t]he President may, by legislative instrument, make Regulations extending any or all of the immunities and privileges conferred on diplomatic agents by virtue of this Act to prescribed organisations and prescribed representatives and officials, subject to such conditions and limitations as may be prescribed.” This provision empowers the President to extend the status, privileges and immunities to persons other than diplomats properly so-called. However, once the President elects to exercise this power, he is bound to act by or under a Legislative Instrument, which must be placed before and passed by Parliament under Article 11 of the Constitution.

Consequently, although other portions of the Agreement may come into force in accordance with the terms of the Agreement and after parliamentary ratification, the portions of the Agreement that purport to confer diplomatic status, privileges and immunities on the US Military and its agents would require a formal Legislative Instrument prepared by the President, and which Article 11 of the Constitution requires to be laid before Parliament for passage. That instrument would specifically prescribe the US Military as an organization to which Ghana is extending these rights and may contain conditions and limitations.

Indeed, in 1957 when Ghana passed the International Bank, Fund and Finance Corporation Act, 1957 (No. 17), it provided in section 3 that a Legislative Instrument was required before the officers of the World Bank, International Monetary Fund and International Finance Corporation would have the status, privileges and immunities that were agreed upon. Similar provisions exist in section 3 of the International Development Association Act, 1960 (Act 11) and the West African Examinations Council Act, 2006 (Act 719). We would also want to draw attention to the Diplomatic Immunities Instrument, 1978 (LI 1180) which extended certain immunities and privileges to the Science Education Programme for Africa (SEPA).

We do not think that Parliament’s ratification of the Agreement under Article 75 is a substitute for the requirement to pass a Legislative Instrument under Article 11(7) of the Constitution.

It is in the light of these that we call for a draft Legislative Instrument on the status, privileges and immunities provided for under the Agreement to be prepared and then we comply with Article 11 of the Constitution to bring those into force. At the very least it will give Parliament yet another opportunity to consider the relevant and affected portions of the Agreement, and hopefully this time with more soberness and less acrimony.

In service for God and Country.

OccupyGhana®

OccupyGhana® Calls For Support For The Auditor-General To Verify All Assets & Liabilities Declared By Public Officials

28TH  JANUARY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR SUPPORT FOR THE AUDITOR-GENERAL TO VERIFY ALL ASSETS & LIABILITIES DECLARED BY PUBLIC OFFICIALS

INTRODUCTION 

OccupyGhana® believes that it is within the constitutional remit of the Auditor-General to conduct an audit or verification of all forms submitted to that office by affected public officers, purporting to declare their assets and liabilities. Such audit or verification would be to ascertain whether:

(1) the assets and liabilities were declared in accordance with the law, upon the assumption by the public officer of his office,

(2) the assets declared actually exist, so as to prevent ‘assumptive’ declarations, where the person declares non-existing assets now, based on the assumption that through corruption those assets may be acquired later,

(3) the declarations were submitted within the time provided by the Constitution, and

(4) any new assets were acquired or liabilities discharged while in office, so that an inquiry may be conducted into whether those assets or the means to settle the declared liabilities were acquired genuinely.

Such a verification or audit could cover all assets declared since the coming into force of the Constitution.

We also believe that if the audit/verification reveals contravention or non-compliance or that there are assets that are not properly attributable to the income of the office holder, then the Auditor-General may refer the matter to the Commission for Human Rights and Administrative Justice (CHRAJ) for investigation.

OccupyGhana® has also received and studied the 2017 Conduct of Public Officers Bill. While recognising that the Bill contains some forward-looking provisions on assets declaration, we notice that the Bill stops short of expressly recognising the inherent power of the Auditor-General to verify the declarations that are submitted to her/him, although that recognition is inferred in that Bill.

We nevertheless do not think that the Bill must be passed into law, or that any constitutional or legislative amendments are required, for the Auditor-General and CHRAJ to perform these functions.

We believe that it is time for the said offices to rise up to the constitutional obligations placed on them, and perform these functions that will bring life and meaning to the relevant constitutional provisions in the fight against corruption.

We now turn to a discussion of the relevant constitutional provisions.

 

‘SECRET’ DECLARATIONS ARE UNCONSTITUTIONAL

Article 286(1) demands that holders of specified public offices “shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by him whether directly or indirectly.” The article speaks of a “declaration,” which we understand to mean a formal or explicit statement or announcement.

Currently the declaration is in the nature of a form that is found in Schedule 2 to the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550). Our understanding of the current practice is that the Declaration Form is allegedly completed and submitted to the Auditor-General in a sealed envelope. We also understand that the envelopes remain sealed, and that the successive Auditors-General have not considered it as part of their obligations under the Constitution to open the sealed envelopes, let alone verify or conduct an audit of their contents.

We find nothing in article 286 that supports the current “secret declaration,” which is a contradiction in terms. The concept of a “secret declaration” that remain uninspected in the hands of the Auditor-General is not just alien to the Constitution but an anathema, and is therefore unconstitutional.

We also note that the power of the Auditor-General to verify the declarations submitted is implicit or implied in the language of the Conduct of Public Officers Bill. For instance, clauses 7 and 11 make it an offence to submit a false declaration or clarification, or to fail to submit a declaration or clarification. Clause 8 provides for the Auditor-General seeking clarification on matters such as the ownership of assets declared and explanation or correction of discrepancies or inconsistencies in the declarations. Clearly, these are not possible until the Auditor-General has exercised his power to verify or audit the declarations submitted to her/him.

 

TIME FOR MAKING DECLARATIONS

Further, article 286 demands that the declarations should be submitted to the Auditor-General by office holders (i) before taking office, (ii) at the end of every four years, and (iii) at the end of a person’s term of office. The Constitution expresses these in mandatory terms and does not permit the making of the declaration and submission on any date after the stated times.

Therefore, it is also unconstitutional to submit any declaration to the Auditor-General after the deadline stated in the article. Any office holder who submits the declaration after the stated deadline has breached the Constitution and the oath of office to “defend the Constitution of the Republic of Ghana as by law established.”

Accordingly, we believe that the provision in section 1(4) of Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), which gives a 6-month extension for the submission of the declaration, is unconstitutional and void. The repeat of this in clause 4(3) of the Conduct of Office Holders Bill would also be unconstitutional if the Bill is passed into law.

 

NO CONSTITUTIONAL BAR TO VERIFICATION

Article 286(3) then provides that the declaration “shall on demand be produced in evidence” before a court, a commission of inquiry under article 278 and before an investigator appointed by CHRAJ.

Since the inception of the Constitution, this provision has been applied to mean that these are the only circumstances under which the declaration may be made public. We disagree. This provision only states instances where the declaration may be tendered in evidence. It does not say that apart from these circumstances, the declaration is and remains a confidential document that even the Auditor-General can neither audit nor verify. The article surely does not bar the Auditor-General from opening the envelopes submitted to verify if indeed what has been submitted is an assets and liabilities declaration form in the first place, and then to audit the contents, cross-checking with other assets and liabilities declared previously by the same persons.

That is why any application of article 286(3) to make the declaration submitted to the Auditor-General a secret even from the Auditor-General himself/herself also flies in the face of article 286(4), which is couched in general terms and not subject to article 286(3) as follows:

“Any property or assets acquired by a public officer after the initial declaration required by clause (1) of this article and which is not reasonably attributable to income, gift, loan, inheritance or any other reasonable source shall be deemed to have been acquired in contravention of this Constitution.”

Any position that purports to bar the Auditor-General from auditing and verifying the declaration would read article 286(4) as being subject to article 286(3), so that the only circumstances under which it may be discovered that an office holder had acquired assets or settled liabilities in breach of the Constitution, is when the declaration is “produced in evidence” in the course of court proceedings, commission of inquiry proceedings or CHRAJ investigations.

Our respectful view is that it is the Auditor-General’s audit or verification that would reveal whether any new assets have been acquired or liabilities settled. It is that audit that would inform the commencement of any of the article 286(3) proceedings at which the actual declaration submitted to the Auditor-General would be “produced in evidence.”

The current stance therefore flies in the face of the probity, accountability and transparency provisions in the preamble to the Constitution, negates the mandatory obligation placed on the state under article 35(8) “to eradicate corrupt practice,” and claws back the duty placed on citizens to “to protect and preserve public property and expose and combat misuse and waste of public funds and property.”

 

CONCLUSION

We reiterate that it is not for nothing that the Constitution provides that the assets and liabilities declarations be submitted to the Auditor-General, and no other person. In line with the residual auditing function of that office under the Constitution, we find it hard to believe that the declarations submitted remain unopened and are simply filed away. Without the Auditor-General conducting such audits and verification, the spirit and true intent of article 286 will never be achieved and the current “concealment and archiving” process will be used to defeat the article.

It is on these bases that we have concluded that the only way to give voice and flesh to article 286 is for the Auditor-General to verify and audit declarations that are submitted, or at least a sample of them. That audit will reveal to the office (i) whether a person has truly declared all assets and liabilities upon assumption of office, and (ii) when a person had completed service to the nation, whether that person has acquired any new assets or settled any liabilities so that an inquiry may be had into whether those assets were acquired genuinely.

We call on the Auditor-General to outline a verification procedure which reflects the true and proper interpretation of the Constitution, particularly article 286, in line with the above, and implement it forthwith. Yours in the service of God and Country,

OccupyGhana

OccupyGhana® Calls For The Existing Television Licence Regime To Be Repealed And Replaced

OccupyGhana® Calls For The Existing Television Licence Regime To Be Repealed And Replaced

4th JANUARY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR THE EXISTING TELEVISION LICENCE REGIME TO BE REPEALED AND REPLACED

OccupyGhana® has followed the recent discussions regarding TV Licence Fees, particularly the announcement that specific courts have been established to try defaulters. We disagree with these moves for two reasons:

  1. There is no constitutional or statutory basis for the Ghana Broadcasting Corporation (GBC), simply as the designated “licensing authority,” retaining the revenue from what is essentially a tax, and then determining how to use it, outside laws passed and appropriations made by Parliament, and
  2. The entire TV Licence regime that was established in 1966 (with just a few amendments) has become obsolete. What is required is not a forcible re-implementation of it, but a root-and-stem review that repeals the existing law and regime, and, if necessary, introduces a new statute and regime that takes the current realities in broadcasting into account.

We will address these matters in turn:

UNCONSTITUTIONALITY AND ILLEGALITY

The Television Licensing Act, 1966 (NLCD 89) and the various Television Licensing Regulations passed under it, provide for the payment of TV Licence Fees for the licensing of the installation and use of “television receiving sets.” These are to exist and operate under the auspices of a “licensing authority” that would be either “the Ghana Broadcasting Corporation or any other statutory corporation appointed by the Minister by legislative instrument.” Every contravention of the Act (including the non-payment of the fee) is an offence punishable by up to a fine of 250 penalty units (GHS3,000) and/or up to one year’s imprisonment.

The TV Licence Fee is simply a tax for owning or dealing in the affected apparatus. GBC is merely the currently designated body to administer the licences and collect those taxes, as an agent of the government. We are not aware of any statute that gives GBC the power to retain the revenue derived from the tax and then use it for its operations, developing content, sharing with other broadcasters or for any other purpose.

That tax revenue is also not listed as one of the sources of funds of the GBC under section 10 of the Ghana Broadcasting Corporation Act, 1968 (NLCD 226). Although that section provides that GBC’s funds include “moneys accruing to the Corporation in the course of the performance of its functions,” tax revenue does not accrue to the GBC and does not fall under this rubric. Similarly, if the Minister were to designate another statutory corporation as the “licensing authority” under the Act, that entity would not have the right to use the revenue.

Further, that revenue does not constitute GBC’s “internally generated funds” (IGF). Article 176 of the Constitution demands that “all revenues or other monies raised or received for the purposes of, or on behalf of, the Government;” and “any other monies raised or received in trust for, or on behalf of, the Government,” must be mandatorily paid into the Consolidated Fund. Exceptions, particularly retentions, are only permitted under an Act of Parliament.

That is why statutes such as the Ministries, Departments and Agencies (Retention of Funds) Act, 2007 (Act 735) and the Public Financial Management Act, 2016 (Act 921) contain strict rules on the use of IGFs, and our statute books are replete with specific statutes (too many to be listed here) in which Parliament expressly allows entities to keep all or part of IGFs. We are not aware of any such statute with respect to the GBC.

It is on these bases that we believe that the automatic retention of the TV Licence Fees by the GBC for its purposes is unconstitutional and illegal and we therefore call for that practice to cease forthwith. Absent a specific enabling legislation, all TV Licence Fees collected should be immediately deposited in the Consolidated Fund.

OBSOLENCE

We further contend that both the regime and the law on TV licensing are obsolete for three main reasons:

(i) The Act defines “television receiving set” as “an apparatus CONSTRUCTED SOLELY for the reception of pictures, with or without sound transmitted by radio” [Emphasis added.] This means that if the apparatus in use, by its manufacture and technology, is not restricted to only receiving pictures (with or without radio-transmitted sound), but is capable of receiving other signals, that apparatus is not the subject of licensing and consequently the payment of the fee. We think that contrary to your expressed view, the law expressly rules out the vast majority of apparatuses (Smart TVs, phones, pads, tablets, etc.) that are currently in use, and which are manufactured to receive and process more than just pictures. Indeed what may even be called “TVs” today are not mere linear broadcast receivers and translators of pictures. They are also used to play games, watch movies, project presentations, display location adverts and browse the Internet. The reality is that a strict application of a law that is based on 1966 technology, to 2017 apparatuses would leave the licensing authority with precious little or almost nothing to enforce the licence against.

(ii) With over authorized 505 radio stations (392 operational) and 75 television stations, Ghanaians have a lot of media sources to consume both local/public and international content. This ensures competition that should result in producing quality content. Also, Ghana has recorded a tremendous growth in the number and diversity of media channels, with Ghanaians having countless media sources such as radio, newspaper, magazines, websites and other online platforms. Further, online platforms such as YouTube, Hulu, Netflix, Apple TV, Amazon Prime Video and Google ChromeCast are redefining content broadcasting online and pointing to the future of TV broadcasting. All these are available and consumed in Ghana, driving the growth of data usage. There are also cable-TV services in Ghana who broadcast local channels through set-top boxes. Some of these have become the first choice channels for media content consumption, thereby reducing the audience share for traditional TV transmission. Evidently, GBC is not the only TV media source where public information is consumed for it to warrant an automatic right to TV Licence Fees and to be able to produce and broadcast public information. Further, not all Ghanaians or TV owners in Ghana will consume GTV’s content.

(iii) GBC (managers of GTV) is a commercial broadcaster. For years, it enjoyed an absolute monopoly in television broadcasting and the income from adverts and sponsored contents. Now it has competition and is faltering. Compelling Ghanaians to pay TV Licence Fees to GBC is grossly unfair and anti-competitive. Announcing the setting up of a court for these purposes sends the wrong signal to Ghanaians, that draconian steps are being taken to use the judiciary a tool of enforcement of a grossly unpopular tax. If GBC is unable to be profitable, in spite of years of government subvention and TV Licence Fees, then it may be time to consider selling it.

CONCLUSION

In conclusion, the world of television has moved from being analogue to the digital sphere. The rules have changed. In a world of digitisation, Ghana should be thinking of laws and policies that look into the future, and seek to create the enabling smart digital environment for prosperity and opportunities for all. You cannot, in 2017, be seeking to implement laws based on obsolete and currently inapplicable 1966 technology and then seek to punish Ghanaian for not complying with it. That is why we are advocating the repeal of the 1966 law and regime, and if necessary, the enactment of new laws that take the new realities into account.

Yours in the Service of God and Country.

OccupyGhana®

OccupyGhana® Demands Outline For Passage Of The Right To Information Bill

11TH  NOVEMBER 2017

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® DEMANDS OUTLINE FOR PASSAGE OF THE RIGHT TO INFORMATION BILL

OccupyGhana® is deeply concerned that there do not appear to be any clear or discernible plans to pass the Right to Information Bill into law. Despite numerous Government assurances that the Bill will be passed “this year,” “very soon” or in the “next session” of Parliament, no clear timetable has emerged.

The inexcusably long delay by successive governments under the Fourth Republican Constitution to pass this law suggests to us that governments are simply afraid to pass a law that will help actualise a right that the Constitution has already given to Ghanaians. Unless and until the law is passed, Ghanaians are entitled to conclude that governments will seek any and every excuse to defer the passage of this law for as long as possible.

OccupyGhana® is gratified that the courts have held that the right to information does not require an Act of Parliament to be exercised. Yet there remain substantive and procedural impediments to the exercise of this right. The current ‘default’ position of government departments is to either refuse or simply not answer any request for information. This forces citizens to go to court every time they seek to exercise that right. This is unacceptable and has to be addressed to ensure a straightforward and low cost system for the public to be able to enforce requests for information.

OccupyGhana® therefore demands from the government and Parliament, a clear timetable for the passage of this law. This timetable should take cognisance of the commendable public engagement process for the Office of Special Prosecutor Bill, and set firm dates by which:

  1. the government will publish and gazette the Bill;
  2. the Bill shall be tabled for debate in Parliament and
  3. the Parliamentary Select Committee on Constitutional, Legal and Parliamentary affairs shall conclude its deliberations on the Bill.

OccupyGhana® expects that the Bill, when passed into law, will set out the clear parameters and instances where the government will exercise public interest privilege (this is the privilege that allows government to refuse the disclosure of a document or information which is against the public interest.) The current wide-bound interpretation of the government on this privilege is, in our view, the greatest substantive and procedural hurdle to the full realisation of the right to information. Any law that does not deal with this matter in a manner that eases the right to information would be worthless and not have been worth the wait.

OccupyGhana® proposes that the mechanism of a truly Independent Commissioner with the power to determine disputes over public interest privilege would be the single most straightforward means of resolving any current impasse over this issue. An Information Commissioner using a highly simplified and swift process with limited scope for hearings and procedural delays would address concerns about the conflict between public disclosure and privilege. Any disputes over the Commissioner’s determination may be resolved by the Court, on narrow grounds akin to judicial review.

In conclusion, the continued delay in passing this Bill, which is now 18 years old, cannot and should not be accepted one jot further by the Ghanaian people.

Yours, for God & Country,

OccupyGhana®

OCCUPYGHANA® STATEMENT ON THE REPORTED DEFILEMENT OF A MINOR AT ASSIN ADADIENTEM AND MATTERS ARISING

7th NOVEMBER 2017

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® STATEMENT ON THE REPORTED DEFILEMENT OF A MINOR AT ASSIN ADADIENTEM AND MATTERS ARISING

BACKGROUND.

Two weeks ago, we woke up to media reports, alleging that a 4-year old girl had been sexually abused in Assin Adadientem in the Central Region. This allegedly took place on 13th October 2017. The age of the suspect, named only as “Kwabena.” varies between 17 and 18 years, depending on which source you are getting the information from. The mother of the victim is alleged to have reported the matter to the chief, who is said to have pronounced the suspect innocent on the instructions of the gods. The chief has denied this. The victim’s father is also said to have reported the case to the police. There is very little to that part of the story.

According to one article on ‘myjoyonline’, she bled profusely for days before her mother sought help. According to one report, the victim’s mother had travelled to a funeral and had left her in the care of her 8-year old sister, a report that ought to be seriously investigated. That narrative, and given the fact that the mother detected the bleeding on the 14th of October, suggests that the mother was away for at least one night. Even though the article did not specify the bleeding site, we will assume that it was from the area of the vagina, considering the circumstances.

According to another Joy FM report, Dr. Bernard Brew at the St. Francis Xavier Hospital in Assin Fosu, issued a medical report showing an intact hymen with no evidence of laceration; the vulva however was moist and appeared inflamed.  These events are not unusual when it comes to matters involving child sexual abuse. The stories are hardly ever straightforward and it takes a lot of time, patience, training and commitment to sieve through the available evidence.

We condemn without reservation sex abuse in general and Child Sex Abuse in particular. However, we also believe in being innocent until proven guilty by a competent law court. For there to be a conviction, there must be good evidence gathered by the authorities to hold up in court, and like with all evidence, the earlier collected, the better. A delay usually leads to contamination and unreliability of the evidence, if any.

The court of general opinion has already found 17 or 18-year old ‘Kwabena’ guilty. We do not have the luxury to support that position until, it has been so proved by the prosecution in a competent law court. If ‘Kwabena’ is under the age of 18 years, he would be treated as a juvenile. That would mean that this matter would fall squarely within the remit of the 2003 Juvenile Justice Act, which has very different considerations as regards offences committed by juveniles. Our hearts still go out to the little girl because she is unwell and has been admitted to hospital. This will attempt to dissect the media reports, in an attempt to make any sense of it all, but ultimately, the evidence produced in court is the most crucial.

Globally, Child Sexual Abuse (CSA) is defined as intra or extra familial contact abuse of a minor (below 18 years of age), and the victim may be female or male. What then is defilement? In Ghana, section 101 of the 1960 Criminal and Other Offences Act defines defilement as the natural or unnatural carnal knowledge of a child under sixteen years of age. In defilement, consent from the child is immaterial. What this means is that, a suspect who defiles a child under sixteen cannot say that he obtained consent from the victim therefore he is justified. Apart from having natural or unnatural carnal knowledge of a child, some children are also indecently assaulted; there is a spectrum, running from non-invasive to frank rape, and this poses a challenge.

There are varied but marked consequences on the victims, from mental, through emotional and even to their physical health. CSA is a complex, deeply rooted and very traumatizing phenomenon; the victims suffer profound disturbances in their sexual development. It leads to profound feelings of guilt, shame, low self-esteem and familial and social isolation. Globally, about 20% of girls are sexually abused as minors. Curiously, it has very little correlation with socio-economic status of the victim and the perpetrator – all are at risk. Indeed, it is commoner than childhood cancers.

Could it be related to culture? At this moment, there is no evidence to support that, because the incidence is about the same globally, with the difference being in the number of reported and prosecuted cases. Perhaps, the effect of our culture may lie in the elders, chiefs and deities deciding to adjudicate the matter, rather than allowing the law to take its course. The perpetrators are related or known to the victims in 70% of cases. We also know that this is grossly under reported because of collective and individual shame. When there is strong collective shame, there is a low tendency to disclose. It is even worse when the victim and perpetrator are related. With the combined efforts of the police Domestic Violence and Victim Support Unit (DOVVSU), social pressure groups, better education and financial independence of our women, the number of reported cases has increased. For instance, reported rape cases rose by about 10% from 2016 to 2017, whereas defilement cases reduced by about 15% over the same period.

There are a ton of publications on CSA, and most papers often address it as primarily legal as well as feminist issue. This moved the discussion away from the psychological and emotional dimensions and focused more on the direction and development of the law, and in such cases, the law tends to be identified as a significant site of contest.

This particular case, presents more questions than answers:

  1. Apart from the 8-year old sister, was there an adult child keeper?
  2. If there was such a keeper, what did she do about it before the victim’s mother returned from the funeral?
  3. From the media, the victim’s mother reported after several days of bleeding, why was that so? Was it that the child refused to talk? Was she afraid? Was the mother also afraid?
  4. Did the mother confide in another person prior to reporting the case? If she did, what did the person advise?
  5. The victim’s mother is said to have reported to the chief of the village, can this be corroborated?
  6. If she did report to the chief, what exactly did the chief advise?
  7. Did the chief say he had consulted the oracles who declared the suspect innocent?
  8. Was there another person present when the victim’s mother met the chief? We know that per our customs, there is usually a linguist at least, when the chief holds court.
  9. Has the chief been invited by the police for questioning? If he did not advise the lady to report the case, nor did not report same to the police, can we say he obstructed justice?
  10. Has the suspect been questioned by the police?
  11. Has the suspect been examined by the doctor?
  12. How authentic is the medical report doing the media rounds?
  13. Is it possible for a rape victim not to have physical clinical evidence of rape?

EVIDENCE GATHERING.

The successful prosecution in a normal legal system requires that there are laws that have been infringed upon and good quality evidence presented. Sadly, 90% of CSA will not have any physical clinical findings. Sometimes, the only evidence is the victim’s word, and that has many challenges; even for adults, it is not easy, so you may well imagine it for a 4-year old witness whose evidence might even require corroboration to stand up in court. The recent abuse stories involving Harvey Weinstein, the American movie producer, show that even the adults were afraid to come forward for many years.

‘The absence of the hymen does not mean CSA’.

Anatomy is not sacrosanct; there are variations of normal, and these are not abnormal. In simple language, there are tall and short people, with many shades between. Likewise, there are normal variations of the genitals. The appearance of genitalia and the hymen in particular varies with age, constitution, hormonal and the different phases of life. Tampons, riding, splits and stretches may vary the shape and size of hymen.

The perineum (the area around the vagina/penis and anus) has a rich blood supply, and this hastens tissue healing. It is important therefore, to report immediately. A few days later, and the evidence is gone. Early presentation may also allow for DNA evidence from semen, skin and hair to be collected at the hospital. It also allows for medical examination of the suspect for scratch marks, bruising of genitalia and the victim’s DNA samples on his body. It is important to examine the whole body, and not just the genital area. Most doctors may not be sufficiently trained in child and adolescent gynaecology and forensics, and are therefore, likely to miss important pieces of the jigsaw puzzle. A well-trained gynaecologist will be familiar with the challenges and the current trends in determining CSA. Unfortunately, there is a shortage of those.

RECOMMENDATIONS.

DOVVSU should join hands with the gynaecologists to organize training sessions for the doctors in the front line. This will equip them with the skills to enable them pick up evidence and quickly from the history, physical examination and appropriate investigations. Again, we should look at the legal framework that will enable limited and responsible use of photography to improve evidence collection, interpretation and preservation.

Having lost so much time already, this case needs a medical board with gynaecologists, police interrogators and investigators, psychologists and forensic scientists to give it the best shot.

There is a lot of work to be done to reduce the incidence of CSA in Ghana and the rest of the world. We need the police to be professional, we need the doctors to be well equipped to gather the evidence, we must encourage people to come forward, and early and we must find a way of stopping adjudication by people who are not mandated by law so to do. Even though the state encourages out of court settlement in certain cases, that only applies to misdemeanours and not offences like CSA. It might even be prudent to consider legislation that punishes people who block such cases from coming to the authorities.

Children are not responsible enough to look after other children. That is why the 1998 Children’s Act demands that parents must “ensure that in the temporary absence of a parent, the child is cared for by a competent person.” Parents should therefore show responsibility and not leave children in the care of other children and adults in whom trust is questionable. Ghanaians must be educated on the fact that the breach of the parental care and duty provisions of the Children’s Act is an offence that could end up in the parent being fined and/or going to jail.

Further, parents should love and encourage their children to communicate with them without fear, so that the children are able to report any form of abuse. Finally, the community should not shield offenders.

What we should all realize is that, prevention is better than cure!

Yours in the service of God and Country

OccupyGhana®