Does The General Legal Council Have Jurisdiction Over the Attorney-General?
Article 88 (1) “There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government.
(2) The Attorney-General shall discharge such other duties of a legal nature as may be referred or assigned to him by the President, or imposed on him by this Constitution or any other law”
(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.
(4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorized by him in accordance with any law.
(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.
(6) The Attorney-General shall have audience in all courts in Ghana”[1]
The recent brouhaha allegedly involving the Attorney-General of this Republic has ignited once again the subject whether the person occupying the hallowed office of Attorney-General is subject to the disciplinary process of the General Legal Council, or better still, whether the General Legal Council has jurisdiction over the person occupying the office of the Attorney-General and Minister of Justice. While some believe the General Legal Council does not have jurisdiction to discipline a person occupying the office of the Attorney-General, others including the author take the view that the General Legal Council has power over the person occupying the hallowed office of Attorney- General. In this short piece, the author seeks to contribute to the subject matter by exploring this topic having regard to all applicable laws including the Constitution, Legal Profession Act 1960 (Act 32), Legal Professional (Ethical Rules), Law Offices Act,[2] Legal Services Act[3] etc.
The office of the Attorney-General is a creation of the 1992 Constitution. Whoever occupies that office is also the principal legal adviser to the government. The Attorney- General is also referred to as the Leader of the Bar or the first Gentleman of the Bar by virtue of his position as the principal legal adviser of the government. Like Caesar’s wife he must be above reproach. Aside being the principal legal adviser, there is nothing that suggests that the person occupying the office if the Attorney-General must be a lawyer. It has been so by practice and convention, but the author suggests that the argument that the Attorney-General need not be a lawyer seems convincing on the face of the provisions in Article 88, the provision that created the office.
The General Legal Council
Lawyers like any other profession are regulated by laws. Principal among the laws that regulates, the education, training, call, the practice and discipline of lawyers is the Legal Profession Act,[4] Legal Profession (Professional Conduct and Etiquette) Rules[5] among others. The Legal Profession Act, continues the existence of the General Legal Council in its section 1 thus, “The General Legal Council, as established and in existence before the commencement of this Act is responsible for the legal profession and, in particular, (a) for the organization of legal education, and (b) for upholding standards of professional conduct.” Emphasis mine. The composition or the membership of the General Legal Council as provided in the First Schedule as follows, “Subject to this paragraph, the governing body of the Council consists of the chairman, the deputy and (a) the two mist senior Justices of the Supreme Court after the chairman and the deputy chairman referred to in subparagraph 2, (b) the Attorney-General, (c) the Head of the Faculty of Law at the University of Ghana (d) three persons nominated by the Minister, (e) four members of the Bar elected by the Ghana Bar Association.”
The Act 32 provides on the Status of a Lawyer thus, “A person whose name is entered on the Roll kept under section 6 (a) is entitled, subject to section 8, to practice as a lawyer, whether as a barrister or solicitor or both and to sue for and recover the fees, charges and disbursements for service rendered as a lawyer, and (b) is an officer of the Courts, and (c) is subject, when acting as a lawyer, to the liabilities that attach by law to a solicitor.”[6] The person who occupies the office or who has occupied this office under the fourth Republic have always been lawyers and for that matter officers of the court. In fact, by the Constitutional provision, the person occupying that office has audience before all Courts and takes precedence when present in court, in the sense that by practice and convention, once the person occupying the office of the Attorney-General is present, his or her case would be called ahead of any other lawyer, sometime regardless of the hallowed principle of seniority.
It has been said severally that, being a lawyer is not about academic qualification or passing an examination. It goes beyond knowing book, passing exams or even winning cases. To qualify to be called to the bar or be enrolled as a lawyer one must meet other requirements. The law is that “A person is qualified for enrollment if that person satisfies the Council in respect of (a) good character, and (b) the holding of a qualifying certificate granted under section 13 by the Council.”[7] It is further provided that, (2) A person may be enrolled by the Council, if the Council is satisfied (a) as to the good character of that person, (b) as to the qualification to practice in a country having sufficiently analogous system of law and the qualifications render that person suitable for enrollment, and (c) that the conditions prescribed by the Council in respect of the status or proficient, have been complied with by that person”. Being of a good character is a cardinal requirement or part of the qualification and certain persons in recent time have been denied the call to the bar because there was a view that those persons failed to meet this test[8], fortunately one such person (Ama Governor[9]) was recently called to the bar[10], congratulations to her is in order.
Being a profession that thrive of rules and ethics, there are certain ethical conducts that are unbecoming of the calling if lawyers. There are institutions and bodies to check and regulate that all members of the profession behave in ethical ways. The rules of conduct have numerous of conducts that are prohibited and when one engages is, will be a candidate for Disciplinary hearing at the General Legal Council. Some of these conducts/misconducts from which lawyers are prohibited would be listed in due course.
Section 16 of Act 32 provides for Discipline of Lawyers thus, “(1) A lawyer who is found guilty of grave misconduct in a professional respect, including a conduct which, in pursuance of the Rules is treated as grave misconduct in a professional respect, is liable (a) to have the name of that lawyer struck off the Roll of Lawyers, or (b) to be prohibited from practicing as a lawyer for a period specified in the order of suspension.”This is the provision that sets the tone for the discipline of all lawyers, without any exception, to which I shall come to subsequently.
Disciplinary Committee of the General Legal Council
The General Legal Council is empowered to appoint from its members to form a Disciplinary Committee. It is provided that, “The Council shall appoint from among its members, from persons who hold or have held high judicial office or an equivalent office or are qualified to be appointed to that office, or former members of the council a disciplinary committee consisting of a number of persons, not less than three nor more than seven as the Council thinks fit.”[11] A complaint by a person relating to the conduct of a lawyer shall be referred the Disciplinary committee and, if it appears to the disciplinary committee that an enquiry ought to be held into the complaint, it shall proceed to hold the enquiry.[12]”
Act 32 provides that the Council may prescribe standards of profession etiquette and professional conduct for lawyers and may by Rules made for this purpose direct that a specified breach of the Rules constitutes, for the purposes of this Act, a grave misconduct in a professional respect. Section 53 of Act 32 further makes provisions for the enactment of Legislative Instruments. It is provided that, “(1) Subject to subsection (2), the Council may, by legislative Instrument, make Rules in relation to a matter referred to in this Act as prescribed. (2) Rules for the purposes of section 3, 6, or 8 shall not be made except with the approval of the Minister. (3) A legislative instrument under this Act is subject to clause (7) of article 11 of the Constitution.
It is pursuant to section 23 ad 53 of Act 32 that, the Legal Profession (Professional Conduct and Etiquette) Rules 2020 (LI 2423) was promulgated. Its antecedent law was the Legal Profession (Professional Conduct and Etiquette) Rules 1969 (LI 613), which has been revoked by LI 2423[13].
The professional conduct of lawyers is therefore governed by the LI 2423 which has several provisions on what lawyers can do and what lawyers cannot do. Examples of such include, a lawyer shall avoid offensive or provocative language and ensure that correspondence or other communication sent to a client is courteous,[14] A lawyer shall not approach, communicate or deal with a represented person on a matter,[15] A lawyer shall not make a false or misleading communication about another lawyer or the services of another lawyer,[16] A lawyer or a law firm shall not personally or through other means of communication solicit for professional employment from prospective client where the motive for the solicitation is the pecuniary gain of the lawyer or the law firm unless the person contacted (a) is a lawyer; or (b) has a family, personal, or prior professional relationship with the lawyer or law firm.[17] The practice of the law is severally regulated so much so that there are even regulations of how lawyers charge and share their fees. It is provided for instance that, “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expense”,[18] A lawyer shall not share legal fees with a non-lawyer except where (a) an agreement between the lawyer and the firm of the lawyer, partner or associate provides for the payment of money over a reasonable period of time after the death of the lawyer to the estate of the lawyer or to other persons specified in the agreement; (b) the lawyer or law firm includes an employee who is not a lawyer in a compensation or retirement plan even though the plan is based in whole or in part on a profit sharing arrangement; or (c) the lawyer shares legal fees awarded by the court with a non-profit organization that employed, retained or recommended the employment of the lawyer in the matter.”[19] A lawyer who is participating or has participated in the investigation or litigation of a matter that is still pending before a Court shall not make an out of Court statement or grant an interview to the media on the media.[20] Even the manner in which trial Attorneys conduct trial or aspect of the trial is strictly regulated. Under Rule 72 the L.I. 2423 provides that, “Subject to the direction of the Court, a lawyer shall observe the following rules in respect of communication with a witness who is giving evidence, (a) during examination-in-chief, the examining lawyer may discuss with the witness any matter that has not been covered in the examination up to that point; (b) during examination-in-chief by another lawyer of a witness who is adverse to the lawyer’s cause, the lawyer who is not conducting the examination-in-chief may discuss the evidence with the lawyer’s own witness; (c) between the completion of examination-in-chief and commencement of cross-examination of the lawyer’s own witness, the lawyer shall not discuss the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief; (d) during cross-examination by an opposing lawyer, the lawyer of a witness shall not have any conversation with the witness about the evidence of the witness or any issue in the proceeding;. A lawyer is even not supposed to sexually harass a colleague, a member of staff or a client,[21] A lawyer is not supposed to have an amorous relationship with his client[22], opposing counsel and the client of opposing counsel, and when an amorous relationship commences between the lawyer and his or her client or the client of the opposing lawyer, the lawyer shall cease to act as a lawyer for that client immediately[23]. These and many others are all provided for by law and they are standards and if any lawyer fall foul of any of them, a person or a lawyer may file a complaint in respect of that conduct for disciplinary action to be taken against the lawyer, without any exception.
Rule 100 of the LI 2423 under which a lawyer can file a complaint against another lawyer provides that (1) “A lawyer who knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to the honesty, truth worthiness or fitness of that other lawyer as a lawyer in other respects, shall inform the Disciplinary Committee, (2) A lawyer who knows that a judge has committed a violation of the rules of judicial conduct that raises substantial question as to the fitness of the judge for office shall inform the appropriate authority. Under this Rule therefore it seems the capacity to file a complaint is that one must be a lawyer, without more. However, by a combined reading of Rule 100 of L.I. 2423 and Section 18 of Act 32 shows that the complaint may be made by a person. The section 18 provides that, “A complaint by a person relating to the conduct of a lawyer shall be referred to the disciplinary committee and, if it appears to the disciplinary committee that an inquiry ought to be held into the complaint, it shall proceed to hold the inquiry.” It is humbly submitted that the person in section18 could be a natural person or an artificial person as has been held previously in the cases of NPP v AG (31st December case)[24] and NPP v AG (Ciba case).[25]
Rules 101 of LI 2423 provides instructively thus,
- A Lawyer who is admitted to practice law in this jurisdiction is subject to the disciplinary authority of this jurisdiction regardless of where the professional misconduct occurs.
- A lawyer who is not admitted to practice law in this jurisdiction is subject to the disciplinary authority of this jurisdiction if that lawyer provides or offers to provide any legal service in this jurisdiction.
- A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
The L.I. 2423 defines the Disciplinary Committee as, “a committee of the General Legal Council charged with (a) examining an alleged breach of discipline by a lawyer, (b) adjudicating on the alleged breach of discipline and (c) imposing the appropriate sanction”[26]
From the above, any practicing lawyer, without any exception, as no exception is known to the law, who commits a misconduct is subject to the disciplinary jurisdiction of the General Legal Council.
Exemption of the AG from obtaining License
Where the law maker wants to make an exemption under the law, it was not shy of saying so expressly. For instance, section 8 of Act 32 on Practicing Certificate of lawyers exempts the Attorney-General and officers of his or her department. It provides that, (1)“ A person, other than that Attorney-General, or an officer of Attorney-General’s Department, shall not practice as a solicitor, unless that person has in respect of that practice a valid annual solicitor’s licence issued by the Council duly stamped and in the form set out in the Second Schedule.[27]” By virtue of this provision, while no lawyer can practice law in Ghana without being issued with a Practicing Licence, the Attorney-General and the officers of the Attorney-General’s Department are excluded from this requirement. This means that a Solicitor’s Licence shall not be required for the Attorney-General or officers of the Department to have licence before they can practice, they can practice without same. See the case of Republic v High Court, Fast Track Division, Accra Ex parte Justin Pwavra Teriwajah & Korboe (Reiss and Co (Ghana) Limited Interested)[28]
It is thus the submission of the author, respectfully, that if it was the intention of the law maker to exclude the Attorney-General from the disciplinary jurisdiction of the General Legal Council, the law maker would have stated so expressly as it did in Section 8 supra. Not doing so, implies that as far as the person occupying that office is a Lawyer, was called to the Bar by the same General Legal Council, that person whoever it may be, is subject to the General Legal Council and being an Attorney-General in itself creates no exception, neither does being on the General Legal Council do any such. The author finds it preposterous that the exemption of the Attorney-General and his officers from practicing with licences like any other lawyer, automatically implies that the person occupying the said office is immune from the control and jurisdiction of the General Legal Council.
Again the fact that the Attorney-General’s office is a creation of the Constitution is not in doubt. If the Constitution wanted to grant the Attorney-General immunity from any proceedings including from Disciplinary Committee of the General Legal Council, the Constitution would have stated it expressly. The Constitution is not shy in anyway in creation such exemptions. The Constitution in fact provides one such exemption for the President, thus, “The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.”[29] It goes on to state that, “Civil or criminal proceedings may be instituted against a person within three years after his ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity before or during his term of office notwithstanding any period of limitation except where proceedings had been legally barred before he assumed the office of President.” This amply demonstrates that, if indeed the Constitution or any law wanted to exclude the person occupying the office Attorney-General from any such proceedings, it would have stated so. The Constitution has provisions when it was to exclude certain conditions or situations, or where exception is created. One such is, where the Constitution in Article 48 (2)[30] which makes the decision of the Court of Appeal final in certain matters regarding appeals from decisions of the Electoral Commission in respect of demarcation of boundaries. Where the Constitution sought to create an exception where the right of further appeal to the Supreme Court was taken away, it was stated expressly and to that extent, if any such exemption was intended for the occupant of the office of Attorney-General from any such proceedings, the Constitution would have stated so in the author’s view.
Review of other Legislation
The quest for answers to the question posed above took the author to town to review other relevant legislation. One such is the Legal Services Act, 1993 P.N.D.C.L 320, the long title of which provides that it is “An Act to provide for further matters in respect of the Legal Service, and for related matters.” It makes the Legal Services part of the Public Service by virtue of Article 190 of the 1992 Constitution.[31] The Service comprises of lawyers in the Attorney-General’s Department holding posts specified in the First Schedule to the Act and any other administrative and supportive personnel that the President may direct.[32] Members of the Service shall be appointed by the President in accordance with Article 195 of the Constitution.”[33] A review of the First Schedule would reveal that the Attorney-General is not part of the offices comprising the Legal Service, the offices expressly mentioned therein are, Solicitor-General, Director, Public Prosecutions, Director Legislative Drafting, Registrar-General who is a lawyer, Chief State Attorney, Category B comprises, Principal State Attorney, Senior State Attorney, with Category C being State Attorney, Assistant State Attorney. Further the Attorney-General is not appointed under Article 195 but rather Article 88. The Attorney-General is not the head of the Legal Service. Section 3 of the Legal Service Act provides that, “(1) The Solicitor-General is the administrative head of the Service. (2) The Solicitor-General shall (a) in the absence of both the Attorney-General and Deputy Attorneys-General perform the functions of the Attorney-General; (b) subject to the directions given by the Attorney-General, supervise and co-ordinate the work of the divisions of the Attorney-General’s Department and of members of the Service; and (c) perform any functions assigned by the Attorney-General.” Section 8 provides that, the governing body of the Service is the Legal Service Board, which shall consist of (a) the Attorney-General, as the chairman, (b) the Deputy Attorneys-General, (c) the Solicitor-General, (d) one Justice of the Superior Court of Judicature nominated by the Chief Justice, (e) the chairman of the Public Services Commission or the representative of that chairman, (f) one representative of the Ghana Bar Association, and (g) two other persons appointed by the President.” The only provision in this Act that deals with disciplinary issues is Section 17 which provides for Regulations thus, “The Attorney-General may on the recommendation of the Board by legislative instrument make Regulations provides for (a) the procedure governing the performance by the Board of its functions; (b) filling of vacancies in the Service; (c) matters relating to misconduct of officers, disciplinary proceedings and penalties” emphasis mine. It is humbly suggested that although the Act provides for the Attorney-General to make regulation for the misconduct of its officers, the Attorney-General is not subject to the proceedings since he or she is not a member or an officer of the Service. It cannot therefore be said that the person occupying the hallowed office of the Attorney-General is not subject to the General Legal Council but the Legal Service Act. In fact, the author doubts if it can be argued that the person occupying the office of the Attorney-General can be disciplined for misconduct if the person misconducts him or herself
There is also the Law Offices Act, 1974 N.R.C.D 279, which is an act to provide for the performance of the Attorney-General and for related matters. Section 1 provides on the performance of the functions of the Attorney-General as follows, “Subject to article 88 of the Constitution, (a) an officer of the Attorney-General’s Department, not below the rank of a State Attorney, or an officer holding a post equivalent to that rank, or (b) a person appointed under section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), or (c) any other public officer if so authorized by the Attorney-General, may perform any of the functions vested by an enactment in the Attorney-General, subject to the directions of the Attorney-General.” Section 3 of the Act is to the effect that “A person holding the office of Attorney-General and an officer of the Attorney-General’s Department is entitled, ex officio, to practice as a lawyer in Ghana.[34]” It seems to the author from this provision that, the Office of the Attorney-General or any of its officers may be occupied by a person or persons who may not necessarily be called to the bar to practice law in Ghana. This in the author’s view is made clear when regard is had to subsection 2 which provides that, “A person referred to in subsection (1) who has served as an officer of the Attorney-General’s Department for a period not less than five years and whose name has not been entered on the Roll of Lawyers is entitled, despite the provisions of any other enactment, to be enrolled and called to the Bar under section 7 of the Legal Profession Act, 1960 (Act 32) and without payment of a fee”[35]. For the purposes of this section, an officer of the Attorney-General’s Department means, (a) a person holding the post of Deputy Attorney-General, Solicitor-General, Director of Legislative Drafting or Director, Public Prosecutions, (b) a person holding the post of the Chief State Attorney, Principal State Attorney, Senior State Attorney, State Attorney or Assistant State Attorney, and (c)any other person holding a post or, being of a rank declared by the Attorney-General by executive instrument to be equivalent to any of the posts or ranks specified in this subsection. This Act also confers powers of arrests on an officer of the Attorney-General’s Department of or above the rank of State Attorney[36]
Now what is the argument on the other side?
It was Lord Denning who said in the case of Parker v Parker[37], and cited with approval by Dotse JSC in Mensah v Mensah[38] that, “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere….”
There are views expressed by some practitioners, commentators and writers who argue that the General Legal Council does not have the power to discipline the person occupying the office of the Attorney. Although the author does not share that view, a discussion of same is had below and the author responds to the arguments on the other side.
I have had the privilege of listening to the view of the Learned Kwaku Ansah Asare Esq.[39] who takes the view that the person occupying the office of the Attorney-General once he or she is a lawyer is subject to the disciplinary powers of the General Legal Council[40] and to that extent the author agrees with him. He speaks his mind without fear of anything, a virtue the author admires. He however proceeds to argue a potential challenge which in the view of the present author ought not to be a challenge at all having regard to the circumstances of the case and judicial precedent some of which would be cited and discussed presently. It is the view of the learned Ansah Asare, that because the office of the Attorney-General is a member of the General Legal Council, the General Legal Council presiding over a case of misconduct of the person occupying the office of the Attorney-General would be tantamount to one being a judge in his own cause, the latin being ‘nemo judex in causa sua’. The office of the Attorney-General is a member of the General Legal Council,[41] but that in itself is not enough reason to say the person occupying that office cannot be subject to disciplinary proceedings of the General Legal Council. First of all, the Disciplinary hearings at the General Legal Council is not presided or conducted by the entire membership of the General Legal Council. By Law, it is the General Legal Council that sets up a disciplinary committee and therefore it is possible to have a Disciplinary Committee that does not empanel the person occupying the office of the Attorney-General. It is the suggestion of the author that, it should be possible for the General Legal Council if it is proceeding on a complaint against a person who is a member of the General Legal Council, whoever that may be, to compose a committee that does not include the person who is the subject of such proceedings or better still that person may recuse him or herself if so empaneled. The second reason why the author does not think that is a problem at all is the fact that the doctrine of nemo judex in causa sua, has exceptions under the law and one of such exception is the doctrine of necessity. This doctrine holds that if a person occupying an office must perform certain statutory functions which cannot be performed by any other person, then the nemo dat in causa sua would not apply. In the case of Tsatsu Tsikata v Chief Justice and Attorney-General,[42] The Plaintiff had commenced an action against the Chief Justice and the Attorney-General under Article 2(1) and 130(1) of the 1992 Constitution. At the hearing, the Plaintiff raised a preliminary legal objection on the ground that it was against the rule of natural justice and principle of nemo judex in causa sua, for the Chief Justice being a party to the action, to empanel the court which was to hear the action. In other words, the Plaintiff made an allegation of bias against the Chief Justice in the empaneling of the Supreme Court bench. By a unanimous decision, the Supreme Court dismissed the preliminary legal objection and held that, “(i) the allegation of bias, in the circumstances of the case, could not disable the Chief Justice from performing his functions under Article 144(6) of the Constitution, (ii) the Chief Justice had the prerogative of empaneling the Supreme Court and was thus vested, under article 128(2), with the discretionary power to administratively empanel all or the available Justices of the Supreme.” The Supreme Court in so holding cited its previous decision in the case of Kuenyehia v Archer.[43] When the Supreme Court had another opportunity in the case of Agyei Twum v Attorney-General and Akwetey,[44] where like the two previous cases, the second defendant filed a preliminary objection to the empaneling of the court by the Chief Justice. His grounds of the objection were that the empaneling by the Chief Justice had the effect of offending the rules of natural justice, equity and good conscience, because allowing the Chief Justice to empanel the court, which was to hear the case relating to the performance of his duties of his office, would constitute being a judge in his own cause, contrary to the principle of nemo judex causa sua. The Supreme Court again unanimously dismissed the preliminary objection. The reason for so dismissing was on the principle of necessity. It was held that so long as he remained in the office, the Chief Justice had the right exercisable by him as an administrative incident of his office under article 125(4) of the Constitution. The respected Dr. Date-Bah JSC had this to say, “The principle laid down in the Akufo-Addo case (1968) GLR 667, CA full bench… was where the common law principles of natural justice conflict with the mandatory statutory provision, the statutory, or by implication, constitutional, provision prevails even if it results in non-compliance with the rules of natural justice.”
To this extent, the fact the office of the Attorney-General is a member of the General Legal Council does not preclude him or her from being subject to the disciplinary powers of the General Legal Council and his being on the General Legal Council does not in any way mean he would be a judge in his own cause. This argument in the author’s view runs into a further absurdity when one considers that fact that prosecutorial powers is vested in the Attorney-General, one wonders what happens when in the unlikely event that the person occupying the office of the Attorney-General commits a criminal offence and is liable for prosecution. Will the argument be made, reasonably that because the person occupying the office who has committed the crime is the same person at whose instance criminal actions are commenced, no prosecution can be commenced? The author answers this in the negative.
I have also had the privilege of reading the post of the learned Dr. Justice Srem-Sai[45] who has recently joined the University of Ghana Law School, and the author takes this opportunity to congratulate him. The author however disagrees with his view that the General Legal Council may not be the proper forum for disciplining an errant Attorney-General for misconduct and the trinity of reasons he cites.
1.That the Attorney-General is a creation of the Constitution and the General Legal Council is a creation of an Act of Parliament.
To respond to this reason, the author concedes that the Attorney-General’s office is one created by the Constitution. But the office is occupied by a natural person and if that person is a lawyer, then he is subject without exception to all liabilities attachable to lawyers including statutes and the Ghana Bar Association’s Code of Conduct. Secondly, the Legal Profession Act under which the General Legal Council is a creation of the Constitution. Article 11 of the Constitution provides for the sources of laws and that includes Acts or enactments by Parliament, it is comunis opinioamong lawyers that the Constitution being the supreme law of the land cannot contain every provision. When the Constitution gives birth to an enactment and that enactment establishes a body for purposes of disciplining a practitioner, the author does not think the creation of an office under the Constitution does not preclude the person occupying the office from being subjected to proceedings under an enactment tracing its source of authority and legitimacy from the same Constitution especially when there is no allegation of inconsistency or unconstitutionality.
2.That the General Legal Council is the licencing authority for law practice. Their main disciplinary tool is the law practice licence. By virtue of Article 88(6), the Attorney-General does not require a licence to practice in the courts, and that the General Legal Council cannot do much about that.
It is the author’s view that the import of Article 88(6) implies that the person occupying the office of the Attorney-General may not necessarily be a lawyer and if that becomes the case, then that person ipso facto of his appointment as the Attorney-General is entitled to have audience before all courts in Ghana. In any case, every lawyer who is called to the bar even a day after his or her pupilage is entitled to have audience before all courts without exception. The fact that it is argued that the person occupying the office of the Attorney-General is subject to the Disciplinary jurisdiction of the General Legal Council does not mean the person’s licence would be suspended or the person will be debarred. If the person is found guilty of misconduct and the General Legal Council cannot suspend or revoke his licence, at least a determination has been made, it is then up to the President or the appointing authority whoever that may be to decide whether to keep in that office a person found to have committed an unethical conduct. But until then it is difficult for the author to agree with the view or reason advanced by the learned Justice Srem-Sai.
Another reason the author finds it difficult to accept the view that, it is only by suspending or revoking a lawyer’s licence, is that, the Disciplinary Committee of the General Legal Council can also make a finding of fact of misconduct and caution the said person, and that is also a remedy open to the Disciplinary Committee of the General Legal Council. Under the Ghana Bar Association Code of Ethics, the sanctions for misconducts is not limited to the revocation or suspension of his or her licence as has been argued. On Discipline the GBA Code of Ethics provides that, “A lawyer who has committed any act declared to be professional misconduct under the Code of Ethics of the Association is liable- (a) to have his name struck off the Register of Lawyers, (b) to be suspended from practicing as a lawyer, (c) to be fined, (d) to be admonished.”[46] (emphasis mine.)
3.That the General Legal Council regulates persons who practice law – that is persons who appear in court on behalf of others for a fee. Though the State’s lawyer, the Attorney-General does not practice law for a fee.
The author does not find any provision in the law that creates a distinction between lawyers who appear in court and those who do not. Legal practice is divided into several categories, some are trial attorneys, others are transactional lawyers. It is difficult to find a basis for this distinction in law for purposes of the disciplinary powers of the General Legal Council. The Act 32 and LI 2423 deals with lawyers without distinction. In fact, a lawyer who conducts a case or appears in court on behalf of a client for gratis (pro bono) is subject to the same liabilities as one who appears for a fee. In any case, the Attorney-General and officers of the Department represent the State in matters (both Civil and Criminal) and it is not for gratis, they are all paid monthly salary (remuneration for their services) which is also ‘fees’. In fact, in recent times, the same General Legal Council through its Disciplinary Committee has presided over the misconduct of a Chief State Attorney (Samuel Nerquaye-Tetteh) and upon finding him guilty, banned him from practice.[47] The said lawyer was an officer of the Attorney-General’s Department, he was not appearing before the courts on behalf of clients for a fee, yet the General Legal Council disciplined him when he was alleged to have misconducted himself under Rule 2(2) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613) which was the law in force at the time of the act allegedly committed by the said Chief State Attorney. The view therefore is not supported by the law, the facts and evidence available.
It has also been argued by some that the office of the Attorney-General is sui generis. That the Attorney-General and his officers are not amenable to the jurisdiction of the General Legal Council. Unless those who argue this way are able to say that the General Legal Council erred when it assumed jurisdiction over a Chief State Attorney on an alleged professional misconduct. This argument is not appealing to the author. The danger in that line of thought, is that the law has created an office the occupant of which is not subject to regulation by the professional body to which the occupant belongs and that portends danger for a democracy.
Must the Attorney-General of a Necessity be a Lawyer?
Article 88 which creates the office of the Attorney-General does not say or make it a requirement for the Attorney-General and Minister for Justice to be a lawyer. All it provides is that the said person shall be the principal legal adviser. The law maker if it wanted the person to be a lawyer would have stated so expressly. The closest it comes to is what can be inferred from the functions of the Attorney-General. Which includes commencing criminal prosecution, initiating civil suits on behalf of the Republic and defending same. It has however been the practice that all persons who have had the privilege of occupying that office have been lawyers, but that in and of itself make it a condition that the occupant must be a lawyer. It can therefore be argued that it is possible to have an Attorney-General who is not necessarily a lawyer called to the Bar under the Legal Profession Act. In other words, there can be a time where a President would decide to nominate at his or her Attorney-General and Minister of Justice, a legal academic or even one who has not been called to the bar in Ghana but another country and that would be constitutional. The author is fortified in this view, first because the Constitution itself did not say the person must be a lawyer, secondly that is the logical deduction from Article 88(6) which says that the Attorney-General shall have audience before all courts in Ghana. It is the humble view of the author that if it is automatic that the Attorney-General must if a necessity be a lawyer, the clause 6 of Article 88 would be needless or superfluous.
The only time the General Legal Council would not have the mandate to discipline an Attorney-General is when the person occupying that office is not a lawyer who has been called to the bar and therefore not subject to the jurisdiction of the General Legal Council. Even in that instance, it would be absurd in the author’s view to say such a person is not subject to the disciplinary powers of the General Legal Council.
General Legal Council as an Inferior Body
The General Legal Council is an inferior body. The law is settled that the reference to a body as an inferior body in law is not derogatory in anyway. The respected retired Supreme Court Judge[48], in his book[49] at page 6 states the position thus, “It is however important to bear in mind that the words “inferior” and lower were used neither in a derogatory sense nor to suggest that those courts or tribunals dealt with less serious or unimportant matters. An inferior court is simply a court with limited jurisdiction as defined by statute which set it up.” He is fortified in that view by decided cases like Republic v Commissioner of Income Tax; Ex Parte National Employers Mutual General Insurance Association Limited,[50] Republic v Special Tribunal; Ex Parte Forson[51] and Republic v High Court Accra Ex Parte Commission on Human Rights and Administrative Justice (Addo Interested Party).[52] It is an inferior body in spite of the pedigree or stature of the persons who form the Council because the law has made it so and its decisions can be quashed by the High Courts. In the case of the Republic v Social Security and National Insurance Trust and Attorney-General, Ex-Parte Ernest Thompson[53], Torkornoo JSC (as she then was) cited Republic v Ghana Industrial Holding Corporation, Ex-Parte Amartey Kwei[54] and said thus, “the order of certiorari was a means of controlling inferior courts and bodies having the legal authority to determine questions affecting the rights of subjects and having a duty to act judicially.” She continues thus, “At common law, the High Court has always had supervisory jurisdiction over inferior courts and statutory bodies”. As inferior bodies, it does not have jurisdiction aside what has been expressly provided by law, as opposed to superior courts who have jurisdiction in all matters except what has been taken away from them by law, as established in the case of Timitimi v Amabebe.[55] This same point was made regarding the Commission of Human Rights and Administrative Justice (CHRAJ) in the case of Republic v High Court, Ex Parte CHRAJ cited supra.[56] The author syllogistically reasons and submits in that regard, the General Legal Council and its Disciplinary Committee is well within its jurisdiction to preside over proceedings of misconduct involving the person occupying the office of the Attorney-General. Students of Philosophy or Logic and Critical thinking are familiar with Syllogism[57], and are introduced to a famous syllogism that says, “1. All men are mortals, 2, Socrates is a man, 3. Therefore Socrates is a mortal.” Flowing from the same logic, the author posits that, ‘The General Legal Council has jurisdiction over all lawyers, the Attorney-General is a lawyer, therefore the General Legal Council has jurisdiction over the Attorney-Genera’l.
Conclusion
It is the author’s respectful conclusion that the person who occupies the office of the Attorney-General as long as he is a lawyer, is subject to all liabilities attachable to lawyers including being disciplined by the General Legal Council and to say otherwise will lead to an unpardonable absurdity. It is possible to say there may be other means of disciplining such an Attorney-General, but certainly the abundance of opportunities (assuming without admitting) does not preclude the said office holder from being subjected to the disciplinary code of his professional colleagues, especially when no law known to the Republic creates an exception. Those who argue that the person occupying the office of the Attorney-General are also unable to show how an errant Attorney-General must be disciplined, certainly whoever it may be, is certainly not above the law. There is no principle known to law, that automatically makes the person occupying the office of the Attorney-General exempt from discipline or applicability of rules that regulate all lawyers. To argue otherwise is to say the rules of ethics are not applicable to the lawyer who occupies the office of the Attorney-General and the leader of the Bar. If the General Legal Council with the composition under the law and the caliber of persons cannot preside over the conduct of the Attorney-General, then one wonders which other body is suited for that purpose. If there is any law that creates the exception, or that provides for any other means for disciplining the misconduct of a person occupying the office of the Attorney-General, the author is willing to bow to superior wisdom founded on sound legal principles, until then, the argument on the other side remains unconvincing and must be consigned to the dustbin of legal inconsequential with celestial respect.
[1] Article 88 of the 1992 Constitution of Ghana
[2] 1974 N.R.C.D 279
[3] 1993 P.N.D.C.L 320
[4]1960 (Act 32)
[5] 2020 (LI 2423)
[6] Section 2 of Act 32.
[7] Section 3(1)
[8] https://www.ghanaweb.com/GhanaHomePage/entertainment/Barred-from-the-Bar-Ama-Governor-denied-for-second-time-1864535
[9] Elorm Ababio
[10] https://www.modernghana.com/entertainment/77547/ama-governor-officially-gains-call-to-ghana-bar.html
[11] Section 17 of Act 32
[12] Section 18 of Act 32
[13] Rule 103 of L.I. 2423
[14] Rule 11(2) L.I 2423
[15] Rule 13(1)(a) L.I 2423
[16] Rule 14 (1) L.I 2423
[17] Rule 15 (1) L.I 2423
[18] Rule 16 (1) L.I 2423
[19] Rule 18 of L.I. 2423
[20] Rule 38 of L.I. 2423
[21] Rule 75(1) of L.I. 2423
[22] Rule 20 (11) of L.I. 2423
[23] Rule 20 (12) of L.I. 2423
[24] [1993-1994] 2 GLR 35
[25] [1996-97] SCGLR 729
[26] Rule 102 L.I 2423
[27] Section 8(1) of Act 32
[28] (2013-2014) 2 SCGLR 1247
[29] Article 57(5) of the 1992 Constitution
[30] A person aggrieved by a decision of the tribunal referred to in clause (1) of this article may appeal to the Court of Appeal whose decision on the matter shall be final.
[31] Section 1(1) of the Legal Service Act 1993 P.N.D.C.L 320
[32] Section 1(2) of the Legal Service Act 1993 P.N.D.C.L 320
[33] Section 1(4) of the Legal Service Act 1993 P.N.D.C.L 320
[34] Section 3 of the Law Offices Act 1974 N.R.C.D 279
[35] Section 3(2) of the Law Offices Act 1974 N.R.C.D 279
[36] Section 4 of the Law Offices Act 1974 N.R.C.D 279
[37] (1954) All ER 22
[38] (2012) 46 GMJ
[39] Former Director of Legal Education/Ghana School of Law
[40] https://www.myjoyonline.com/president-must-discipline-himself-before-disciplining-others-kwaku-ansa-asare/
[41] Paragraph 2(1)(b) of the First Schedule to the Legal Profession Act
[42] [2001-2002] SCGLR 437
[43] [1993-94] 2 GLR 525, SC
[44] [2005-2006] SCGLR 732
[46] Ghana Bar Association Constitution Code of Ethics and Regulations, Part 3 Regulation 9.
[47] https://gna.org.gh/2024/02/chief-state-attorney-nerquaye-tetteh-barred-from-practicing-law-in-ghana/
[48] Stephen A Brobbey JSC
[49] Practice & Procedure in the Trial Courts and Tribunals of Ghana
[50] [1982-83] GKR 556
[51] [1980] GLR 529
[52] [2003-2004] SCGLR 312 at p 344
[53] Civil Appeal No. J4/51/2021 judgment dated 15th June 2022
[54] [1982-83] GLR 510
[55] 14 WACA 374
[56] [2003-2004] SCGLR 312
[57] Syllogism is a form of reasoning in which a conclusion is drawn from two given or assumed propositions called premises.