OccupyGhana® Presents Immediate Solutions For Reducing The Carnage On Tetteh Quarshie-Adenta Highway (N4)

OccupyGhana® Presents Immediate Solutions For Reducing The Carnage On Tetteh Quarshie-Adenta Highway (N4)

9th November, 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® PRESENTS IMMEDIATE SOLUTIONS FOR REDUCING THE CARNAGE ON TETTEH QUARSHIE-ADENTA HIGHWAY (N4)

OccupyGhana® is alarmed at the spate of pedestrian deaths on the Tetteh Quarshie-Adenta Highway (N4) in Accra due primarily to the unavailability of safe crossing facilities on the road. The latest accident in which a first-year female student of West Africa Senior High School (WASS) was reported to have been killed becomes the 194th reported death on the Madina-Adentan Highway this year.

OccupyGhana® joins the nation in grieving with the bereaved families of the deceased.

The incident, which caused angry residents to set ablaze car tyres to register their protest to the government, is deeply regrettable and would have been avoidable had government been proactive in arresting the situation sooner.

OccupyGhana® is surprised that after 11 years of the construction of the highway, none of the footbridges have been completed. This has made it unsafe for pedestrians to cross the multiple-lane highway. It is expected that footbridges, which form the integral safety of pedestrians, must be constructed before the commissioning of any highway.

OccupyGhana® is disappointed in the slow reaction of the Ministry of Transportation, Ministry of Roads and Highways, and the Ghana Highways Authority to handling this issue, thus causing the reported loss of 194 lives. These authorities have failed to take the required safety measures to save the lives of innocent Ghanaians who must cross the roads in the conduct of their everyday business.

Although we acknowledge government’s statement in dealing with the situation, and find it unforgivingly belated, we assure the government that we will hold them to it.

In addition to the measures proposed by government, OccupyGhana® calls for the following immediate measures to be implemented in curbing the carnage on the Tetteh Quarshie-Adenta Highway (N4):

1. Specific speed limits should be imposed and enforced on that stretch of road;

2. Rumble strips should be constructed on the long stretch of road beginning from the University of Ghana to the Pantang end of the highway to reduce the unnecessary speeding of drivers;

3. Government should replace all faulty traffic lights with modern, solar-powered lights and provide extra traffic lights with toucan crossing system to allow free flow of traffic;

4. Public education must be extended to the public on safe crossing of the highways, by the National Road Safety Commission;

5. Officials of the MTTD of the Ghana Police must be on duty at all times to control the traffic situation till all works are completed on the repair and installation of the traffic lights and rumble streets;

6. Government must provide adequate road signs and markings along this stretch, fix reflectors on the kerbs and designate and mark crosswalks where pedestrians have priority over vehicular traffic;

7. Government should fix all streetlights along the corridor and ensure they are properly maintained; and

8. Enforce our traffic laws!

OccupyGhana® is concerned about road safety measures on other highways, most especially the N1 highway that is claiming a lot of lives. Government should apply these same measures on the N1 highway.

Yours in the service of occupying minds for God and Country

OccupyGhana®

Letter to Government In Relation to KNUST happenings

29th October 2018

The Minister of Education
Ministry of Education
Accra

The Executive Secretary
National Council for Tertiary Education
Accra

Gentlemen:

RE: RECENT DEVELOPMENTS CONCERNING KNUST

OccupyGhana® has been closely observing the recent developments at the Kwame Nkrumah University of Science and Technology, Kumasi (“KNUST”), and the issues arising from them. We have also just seen what purports to be a letter from the National Council for Tertiary Education (“NCTE”) that seeks to recognise a so-called “Interim Council” and further “direct” the Vice-Chancellor (“VC”) to step aside.

We register our strong opposition to any attempts to (i) replace the duly-constituted Council of KNUST with any other body in a manner that does not conform with the laws of the country, and then (ii) force the Vice-Chancellor to resign or step aside. It is our view that these acts by your two bodies, constitute an infringement of and affront to the law and the right to academic freedom recognized and protected under article 21 of the Constitution, and which is generally recognised to protect both university teachers and university administrators.

Our objections have three grounds.

First, it was the case that under the original formulation of the KNUST Act, 1961 (Act 80) and the amendments in PNDCL 240, the Government was the appointing authority of the KNUST Council, with the President as the Chancellor. However, as a result of the coming into force of article 68(1)(b) of the Constitution, and Parliament accepting and passing into law, the comprehensive review and consolidation of Ghana law by the Statute Law Revision Commissioner (the “Crabbe Reforms”) changes occurred in the KNUST Act, among several others.

Key among these changes, based on the Constitution and also meant to enhance the right to academic freedom, was that the President was no longer the Chancellor of that university or any other university in Ghana. As a result of this, now, the government appoints Chancellors but only where the relevant statute specifically vests this power in the President. It might also appoint Councils of universities where the relevant statute so provides. This does not include KNUST, the University of Cape Coast, the University of Development Studies and the University of Mines and Technology. And in the specific case of KNUST, the President appoints the Chancellor with the advice of the Council, and it is the Chancellor, not the Government, who appoints the chair of the Council. The Council is also made up of persons is directly “appointed or elected” by specifically named institutions and bodies as their “representatives.” And, it is the Council that appoints the VC, and may remove that person in the exercise of its implied power under article 297 of the Constitution. Neither the government nor any of its agencies including the NCTE may usurp any of those powers vested by law in those other persons.

The Crabbe Reforms have been upheld several times by our courts and most authoritatively by the Supreme Court in Kpebu v. Attorney-General (No. 3). In that case, although the Court expressed regret that Parliament’s deliberations leading to the adoption of those Crabbe Reforms were “hasty, superficial and lacked any commitment,” the Court stated that even if there had been mistakes it was Parliament’s duty to make the required changes, and not the Court’s. The Court was emphatic that “the Seven Volumes of the Laws of Ghana (Revised Edition) constitute the current state of the law contained therein.”

It does not appear that Parliament has accepted that the Crabbe Reforms contain any “mistakes.”  Further, Parliament has not taken any steps to revise the Crabbe Reforms to correct any perceived “mistakes.” Until that happens, the law is what is contained in the Laws of Ghana (Revised Edition.) The Government is bound by them, and certainly the Executive is not allowed to turn itself into a legislative authority to make up the law as it pleases, or to hunt and peck and pick and choose which provisions it would respect and which provisions it would disrespect.

Second, even if the Government is still the appointing authority of the KNUST Council and therefore may dissolve it (which position would fly in the face of the express amendment to the KNUST Act), the Government cannot purport to reconstitute the Council without affording the named institutions or bodies in the Act, the opportunity to “appoint or elect” their respective representatives to serve on any reconstituted Council. It appears to us to be an affront to democracy and the rule of law, that when the law gives to other institutions or bodies the right to “appoint or elect” persons to serve on the Council, the Government can arrogate to itself the right to do that on their behalf and select persons that the Government chooses, as representatives of the institutions or bodies. Thus the current “Interim Council” is an illegality that must not be countenanced or allowed to exist or operate. The purported ‘elevation’ of the Pro-VC to the Council, in a thinly-disguised attempt to remove the VC from his ex-officio seat on the Council, is also illegal.

Third, the “directive” by the NTCE for the VC to “temporarily handover the day to day running of the University to the pro-Vice Chancellor,” allegedly to allow the illegal Interim Council to operate is yet another illegal act in a stream of illegal acts by both the government and its agencies. The NCTE has no such power. This ultra vires and legally flawed directive has no basis in the NCTE Act, 1993 (Act 454), under which the NCTE is merely an advisory body to the Minister and tertiary institutions, and may also make recommendations and publish information on tertiary education. Surely this wrongly assumed power to issue such a directive cannot even fall under the omnibus clause that the NCTE may perform other functions “that are incidental” to its stated statutory functions.

Accordingly, the said directive by the NCTE should be withdrawn or be ignored and treated with the contempt it deserves.

We respectfully urge both the Ministry and the NCTE to respect the law and the right of academic freedom, and stop interfering in the administration of KNUST. The Government’s role, if any, would and should be to maintain law and order on the campus and to facilitate discussions leading to an amicable resolution of the problems on the campus, and not to jump into the arena of conflict, become a party to it and thereby compound the problems. The Government should allow the law to work and for the duly constituted bodies to decide on what happens on the campus. That is the law and we fully expect of the Government and its agencies that if they are unhappy with the law, they may appeal to Parliament to revise it. Until then the government must obey the rule of law, however unpalatable that may be to it.

We urge the two of you to forthwith retract all steps taken in furtherance of these clearly illegal pursuits. You do not have to compound the already volatile situation by inviting court actions and their attendant injunctions that will only adversely affect the students.

We also urge the persons named to serve on the purported “Interim Council” to do right by themselves, their conscience and the law. Just as History names and eulogises “the wise and brave and strong, who graced their generation, who helped the right, and fought the wrong, and made our folk a nation,” it also does not forget to mention, at least in inglorious footnotes, those who lent their names to support clear acts of illegality.

Yours in the service of God and Country

OccupyGhana®

cc.
The Chief of Staff
Office of the President
Accra

The Attorney-General & Minister of Justice
Accra

The Press

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®

Statement on Tramadol Abuse and Addiction

Statement on Tramadol Abuse and Addiction

23rd APRIL 2018

OCCUPYGHANA® PRESS STATEMENT

STATEMENT ON TRAMADOL ABUSE AND ADDICTION

Introduction

Tramadol is a synthetic opioid that is used to treat acute and chronic pain of moderate to severe intensity. It has one-tenth the potency of morphine. It is used worldwide, having originally been developed in 1962 by Grünenthal Gmbh and coming onto the market in 1977.

Tramadol has the potential to be dangerously addictive. However, although it has been reviewed several times by the WHO, it is not a regulated drug.

Thus, the International Narcotics Control Board (INCB), the independent intergovernmental control organ for the implementation of the United Nations drug conventions, has not seen it fit to regulate Tramadol.

It is considered a cheap opioid, used for managing pain. Being regulated would make it difficult for doctors in poor countries to obtain it for legitimate use.

Nevertheless, being an opioid, Tramadol has potential to cause dependence and addiction, through abuse or taking higher doses than recommended.

The Problem

Tramadol has recently become a cause of major addiction in Ghana and other developing nations in Africa and Asia. Without the oversight of the INCB, manufacturers in India and China have been able to flood the market with the drug.

There have been many reports lately about the scourge of Tramadol addiction. Until recently, however, many health workers were unaware of the scale of non-medical use and abuse of Tramadol. Patients addicted to Tramadol present with different symptoms from those addicted to the usual opioids like morphine or heroin. This has led to many doctors misdiagnosing the condition.

Porous borders allow the drug to be brought into the country undetected. Tramadol is a controlled substance in Ghana, meaning that those who trade in it, without medical prescription, do so illegally. The trade in Tramadol has links with organised crime.

The doses of Tramadol approved by the FDA for use in Ghana are 50mg and 100mg. The strengths illegally sold on the streets, popularly called TRAMOOR among the youth, tend to be much higher (200mg, 225mg, 250mg).

It has also been reported that Boko Haram and ISIS fighters ingest Tramadol before attacks to increase risk-taking behaviour and make death painless.

Teenagers and young adults are most at risk of abusing and becoming addicted to Tramadol. It is being used to enhance sexual prowess, increase athletic ability and allow prolonged physical labour. The abuse of the drug by some drivers could play a role in motor vehicle accidents. Ultimately, the addiction to the drug results in depression, an increase in risk-taking behaviour, seizures and even death.

Without exact numbers, it is difficult to estimate the extent of the problem, but it could easily be designated a public health problem.

Recommendations

OccupyGhana® is calling on the government to urgently take steps to tackle the illegal trade in Tramadol. We recommend a three-pronged approach – medical, law enforcement and prevention and rehabilitation.

We ask the Ministry of Health to appoint a group to research the extent of the problem. The group will train doctors to recognize signs of Tramadol addiction and take steps to treat these patients. Consideration could be given to setting up addiction treatment centres.

We ask the Law Enforcement agencies to investigate how these drugs are coming in and to take steps to stop the large shipments from India and China. The Narcotics Control Board, FDA and Pharmacy Council should ensure that licensed chemical sellers do not sell Tramadol or that it is not sold over the counter. Tramadol should only be obtainable with a prescription from a licensed medical provider.

We ask for programmes to educate the general public about the drug and its addictive potential. This should involve pharmacists, doctors, teachers, and pastors. Consideration should be given to programmes of rehabilitation.

Though not part of the three-pronged approach, another option to look at would be petitioning the International Narcotics Control Board (INCB) to add Tramadol to the list of opioids it controls. The cost of obtaining it for cancer and post-surgical patients will be a much lesser evil than the scourge of rampant Tramadol addiction.

Tramadol addiction presents a health problem of grave severity and it behoves the nation to get on top of it before it becomes an uncontrollable epidemic.

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 On Government To Immediately Address The Filth Engulfing The Country

OccupyGhana® Calls On Government To Immediately Address The Filth Engulfing The Country

1st MARCH 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS ON GOVERNMENT TO IMMEDIATELY ADDRESS THE FILTH ENGULFING THE COUNTRY 

OccupyGhana® has noted with concern the huge swathes of plastic and other solid and human waste engulfing our country, especially our capital. It is rapidly reaching an alarming state and photographs taken after the recent downpour in parts of Accra in the morning of Wednesday 14th February 2018 have thrown this looming and potentially disastrous health and security problem into sharp focus.

We have also been monitoring how the matter of sanitation is being addressed by Government and we are concerned about Government’s commitment to resolve it

It appears that in spite of the establishment of the new Ministry of Sanitation & Water Resources, little has been done to confront and remove the filth engulfing our country. The reality is that by the Local Governance Act, 2016 (Act 936) and its predecessor statute, issues of sanitation are to be handled by the Metropolitan, Municipal and District Authorities (MMDAs). There are also the provisions of the Community Water and Sanitation Agency Act, 1998 (Act 564), and the functions assigned to that Agency. This legislative dilemma is compounded by the Environmental Sanitation provisions under Part Five of the Public Health Act, 2012 (Act 851), falling within the remit of the Ministry of Health. We therefore have doubts as to what the Ministry will do and achieve when it technically has no legislative mandate to handle sanitation anywhere in the country, unless its role is to coordinate the activities of all the legislatively-mandated bodies on issues of sanitation.

We have taken note of the National Sanitation Campaign launched by the President in November 2017, which does not appear to have made any real impact in resolving the problem yet. Under this campaign, there were to be:

  1. Introduction of automated street sweepers.
  2. The formation of a National Sanitation Brigade.
  3. Appointment of Sanitation Marshalls and Deputies in Municipal and District Assemblies; these appointments were to have been made within one week of the announcement by the President.

None of these initiatives appear to have started, with no clear cut time frame on when and how the Ministry of Sanitation & Water Resources intends to roll out the program.

The President also indicated that he and the Minister for Monitoring & Evaluation would evaluate the performance of all Metropolitan, Municipal and District Chief Executives (MMDCEs) and publish the results of their performance. We think that it would be very apt if the agreed Key Performance Indices used to evaluate them are published so that as Citizens we can monitor and score our MMDCEs on sanitation issues.

We also call upon our MMDAs and Ghana Police to rigidly enforce our laws regarding littering the environment, refuse disposal and open defecation, and charge and prosecute offenders. There are the specific provisions under sections 13(3) and 14 of the Local Governance Act, which empower them to enforce the provisions of section 296 (1) of the Criminal Offences Act, 1960 (Act 29) and section 56 the Public Health Act. These laws contain the penalties for breaches. We see no reason why the laws should not be strictly enforced and offenders punished. We urge the MMDAs and Ghana Police to enforce them without delay.

We urge the Government, acting through the MMDAs, to confront this menace before the impending rainy season, which comes with diseases such as cholera, a direct consequence of poor sanitation. OccupyGhana® is convinced that as a people we should ingrain the practice of keeping our surroundings clean on a continuous basis and not restrict it to periodic nationwide clean up exercises. To achieve this, the bodies tasked with sanitation responsibilities by law, must strictly apply our sanitation laws, carry out intensive and sustained public education and build a new positive attitude in our citizens toward caring for and protecting the environment. This must be done without any further delay.

We also urge Ghanaians to desist from littering the environment, refrain from disposing refuse improperly and stop the practice of open defecation. We must all strive as a people to live up to our dying national maxim: “Cleanliness is next to Godliness”.

The fight for a clean environment cannot be delayed further.

Let us Keep Ghana Clean!

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

Notice of Court Action to Births and Deaths Registry

Notice of Court Action to Births and Deaths Registry

January 26, 2018

 

The Attorney-General & Minister for Justice

Ministry of Justice and Attorney-General’s Department

Accra

 

Dear Madam,

REFUSAL TO REGISTER NAMES AT THE BIRTHS AND DEATHS REGISTRY – NOTICE OF ACTION

Our attention has been drawn to the implementation of an alleged policy by the Registrars of the Birth and Death Registry that refuses to register the birth of children whose names include names such as “Maame,” “Pappa,” “Nana,” “Naa,” “Junior,” “Nene,” “Nii” and “Ohemaa” as well as determine the order in which names must be written, giving prominence to foreign names over indigeneous Ghanaian names. The Registrars claim that they are empowered to do this on the basis of the Registration of Birth and Death Act, 1965 (Act 301).

We have however checked that Act and all relevant laws including the Regulations passed under the Act. We have not seen any provision that either supports this policy or gives the Registrars of Births and Deaths any power to refuse to register any name. We believe that this stance is a gross violation of the rights of Ghanaians to choose names (particularly Ghanaian names) as they deem fit for their children, subject to the right to change one’s name at any time later in life.

We therefore write to put you on notice, in accordance with section 10 of the State Proceedings Act, 1998 (Act 555), that we intend to commence civil action against the Republic within thirty (30) days of the date of this letter if this illegality is not addressed forthwith.

We however believe that this cause of action will not be necessary if all Registrars of the Births and Deaths Registry will be directed to desist from these acts and stop refusing to register such names as they have no basis in law.

Yours faithfully,

OccupyGhana®

cc

The Honourable Minister

Ministry of Local Government

Accra.

 

The Registrar

Birth and Deaths Registry

Accra

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®