{"id":468792,"date":"2018-03-01T13:46:32","date_gmt":"2018-03-01T13:46:32","guid":{"rendered":"https:\/\/ghana-mma.com\/2018\/03\/01\/dismiss-suit-against-amidu-attorney-general\/"},"modified":"2018-03-01T13:46:32","modified_gmt":"2018-03-01T13:46:32","slug":"dismiss-suit-against-amidu-attorney-general","status":"publish","type":"post","link":"https:\/\/www.ghanamma.com\/2018\/03\/01\/dismiss-suit-against-amidu-attorney-general\/","title":{"rendered":"Dismiss suit against Amidu \u2014 Attorney-General"},"content":{"rendered":"<p><\/p>\n<div id=\"medsection1\">\n<!-- End of html generated by this->header() --><\/p>\n<p class=\"floatLeft\">General News of Thursday,  1 March 2018<\/p>\n<p class=\"floatRight\"><strong>Source: <\/strong>Graphic.com.gh <\/p>\n<p>2018-03-01<\/p>\n<div class=\"article-left\">\n<p class=\"article-image\"><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/ghanamma.com\/wp-content\/uploads\/2018\/03\/11205342.295.jpg\" alt=\"Gloria Akuffo Eed\" title=\"Gloria Akuffo Eed\" width=\"295\" height=\"186\" \/><span class=\"image_caption\"><span>Attorney General, Gloria Akuffo<\/span><\/span><\/p>\n<div class=\"noPrint\">\n<div id=\"537626303\" style=\"width:300;height:250;margin:0;padding:0\">\n<p>\t\t  <noscript><iframe loading=\"lazy\" id=\"b2ad7fa7fd\" name=\"b2ad7fa7fd\" src=\"http:\/\/ghanaweb-d.openx.net\/w\/1.0\/afr?auid=537626303&amp;cb=151125817929577\" frameborder=\"0\" scrolling=\"no\" width=\"300\" height=\"250\"><a href=\"\/\/ghanaweb-d.openx.net\/w\/1.0\/rc?cs=b2ad7fa7fd&amp;cb=151125817929577\"><\/p>\n<p>\t\t  <img decoding=\"async\" src=\"https:\/\/ghanamma.com\/wp-content\/uploads\/2018\/03\/1519911992_131_ai\" border=\"0\" alt=\"\" \/><\/a><\/iframe><\/noscript><\/p><\/div>\n<\/p><\/div>\n<\/div>\n<p style=\"clear:right\">The Attorney-General (A-G) and Minister of Justice, Ms Gloria Akuffo, has put up a spirited defence in favour of the appointment of Mr Martin Alamisi Amidu as the Special Prosecutor.<br \/>&#13;<br \/>\nShe has, accordingly, prayed the Supreme Court to dismiss the suit challenging Mr Amidu\u2019s legibility, saying it is born \u201cout of a narrow, inadequate and literal construction of the scope of application of Chapter 24 of the Constitution\u201d.<\/p>\n<p>A former Deputy Attorney-General, Dr Dominic Ayine, is praying the Supreme Court to annul Mr Amidu\u2019s appointment as Special Prosecutor on grounds that he is above the retirement age of 60 years.<\/p>\n<p>However, in a statement of defence filed on Mr Amidu\u2019s behalf, the A-G said all public servants were public officers, but not all public officers were public servants.<\/p>\n<p>The statement, signed on behalf of the A-G by her deputy, Mr Godred Yeboah Dame, said public servants compulsorily retired at the age of 60, with a further possibility of extension of their years of service under Article 199 (4) and that not all public officials were caught by the compulsory retirement age of 60.<\/p>\n<p>The state is, therefore, praying the court to hold that the position of Special Prosecutor is a public office (organ) like the Statute Law Revision Commissioner, not caught by the retiring age prescriptions in Article 199.<\/p>\n<p>\u201cIt is submitted that to place the constraints of age on a person who exercises prosecutorial powers when the Constitution has not specifically provided for same is plainly untenable,\u201d the statement said.<\/p>\n<p>The A-G further submitted that by the combined effect of articles 88 (4) and 298 of the 1992 Constitution, the enactment of Act 959 to provide for the appointment of a Special Prosecutor on a non-renewable seven-year tenure and the subsequent appointment of Mr Amidu to that office were within the rightful legislative competence of Parliament.<\/p>\n<p>She prayed the court to give full force and effect to the powers of Parliament, as the legislative body of Ghana, to provide for all matters, except as are not in contravention of, or inconsistent with, the 1992 Constitution.<\/p>\n<p><b><\/b>Person to sue<\/p>\n<p>The A-G argued that Mr Amidu, who has been attached to the suit as second defendant, was not a proper party to the suit.<\/p>\n<p><img decoding=\"async\" src=\"https:\/\/ghanamma.com\/wp-content\/uploads\/2018\/03\/11546337.jpg\" align=\"middle\" \/><\/p>\n<p>\u201cThe instant action seeks to challenge the decision of the A-G in nominating Mr Amidu as Special Prosecutor, as well as the subsequent presentation by His Excellency the President of the nomination to Parliament for approval. These are decisions taken in the course of official duties by the A-G and the President,\u201d the statement said, adding: \u201cArticle 88 (5) of the Constitution enjoins the A-G to be the defendant in all civil proceedings against the State.\u201d<\/p>\n<p>The A-G, who is the first defendant in the suit, said Dr Ayine clearly misapprehended the nature of his own case with the argument that \u201cthe profoundly absurd effects of his arguments are lost on him\u201d.<\/p>\n<p>\u201cWe will, in the course of the arguments, refer to various paragraphs in plaintiff\u2019s statement of case to show, clearly, that plaintiff has misconceived both the effect of his own case, as well as the substance of the relevant constitutional provisions and the laws of Ghana generally regarding the subject,\u201d the statement said.<\/p>\n<p>According to the A-G, the approach to the interpretation of Article 199 adopted by Dr Ayine could only be \u201cthe plain, non-purposive and narrow one. Before commencing our legal arguments in opposition to the case of the plaintiff, we will respectfully urge the court to reject, as grossly unhelpful, this literal and narrow approach to the interpretation of our Constitution being urged by the plaintiff\u201d.<\/p>\n<p><iframe loading=\"lazy\" src=\"https:\/\/content.jwplatform.com\/players\/U2WTeUZX-GtVgZhNx.html\" width=\"600\" height=\"350\" frameborder=\"0\" scrolling=\"auto\" allowfullscreen=\"\" style=\"position:absolute;\"><\/iframe><\/p>\n<p><b><\/b>Mechanistic interpretation<\/p>\n<p>In the light of the foregoing, she argued, it was accurate to say that the mechanistic, literal way of interpreting the Constitution was now completely out of date and unhelpful to the realisation of the objects of the nation as enshrined in the Constitution.<\/p>\n<p>\u201cIn contrast to the blindly literal approach, the modern purposive approach adopted by the courts invites judges to interpret and apply the Constitution in a way that brings to life and gives meaning to the core values, objects and history that underpin its text.<\/p>\n<p>\u201cThis approach also cautions against judges deeming themselves impotent or incapacitated when faced with obvious lacunae or gaps in the law and, instead, admonishes them to fill such gaps or omissions in appropriate cases, being mindful to do so in a way that harmonises with the values and goals of the nation as enshrined in the Constitution,\u201d the statement said.<\/p>\n<p>The A-G argued further that \u201cthe underlying rationale of this modern approach to constitutional interpretation is to avoid a blindly \u2018strict construction\u2019 that will give rise to profound absurdity, manifest injustice and social retrogression\u201d.<\/p>\n<p><b><\/b>Legal arguments<\/p>\n<p>In arguing against the case of the plaintiff, the A-G respectfully urged the court to take account of the relevant constitutional provisions regarding the meaning of the terms \u201cpublic office\u201d and \u201cpublic service\u201d as used in the Constitution.<\/p>\n<p>The statement also prayed the court to note particularly the fact of the existence of different categories of \u201cpublic offices\u201d and, for that matter, of \u201cpublic officers\u201d.<\/p>\n<p>\u201cIn particular, we invite the court to note the multiple and diverse ways or routes by which different classes of \u2018public officers\u2019 lawfully (enter and) exit public office,\u201d it said.<\/p>\n<p>It prayed the court to take particular note of the formulation of Article 199 (1) and hold that it validated and reinforced the distinction between a public office and the public service.<\/p>\n<p>According to the statement, its submission was sound and unavoidable upon a careful consideration of the relevant provisions of the Constitution.<\/p>\n<p>\u201cWithout this distinction, we will have the effect where all public officers will have to retire at the age of 60 and persons aged over 60 cannot be appointed or elected to any public office at all, whether or not the person has previously served in a public office. The result of such a literal interpretation or application of these constitutional provisions will lead to absurdity, and it is for this reason that the court has to consider a modern purposive approach in determining the matter,\u201d it added.<\/p>\n<p><b><\/b>Erroneous conclusion<\/p>\n<p>The A-G argued that the plaintiff failed to appreciate the distinction between \u201cpublic office\u201d and \u201cpublic service\u201d.<\/p>\n<p>\u201cIt is our submission, respectfully, that the second defendant, while a \u2018public officer\u2019 by virtue of having been appointed to a public office, is not a public servant because he is not a public officer appointed to the \u2018public service\u2019 in terms of Article 295 and Chapter 14 of the Constitution. Chapter 14, including, notably, articles 195 and 199, is totally inapplicable to the position and status of the second defendant,\u201d she said.<\/p>\n<p>She said the plaintiff contradicted himself, in his statement of case, when he seemed to acknowledge that a public officer might not necessarily be a public servant.<\/p>\n<p><iframe loading=\"lazy\" width=\"600\" height=\"350\" src=\"https:\/\/www.youtube.com\/embed\/RpGjKgF5Xuc\" frameborder=\"0\" allow=\"autoplay; encrypted-media\" allowfullscreen=\"\"><\/iframe><\/p>\n<p>The statement said it was because of the different modes of appointment of public officers under the laws of Ghana that the Constitution did not concern itself to define how appointments for a person to hold \u201cpublic office\u201d generally might be made, thus further buttressing the contention that Chapter 14 should be understood to be regulating the appointment of a specific category of public officers.<\/p>\n<p>\u201cWe have shown above that the framers of the Constitution, in their wisdom, did not stipulate that all public officers or public officers, simplicita, should retire at the age of 60 years,\u201d it argued.<\/p>\n<p>\n<b><\/b>No retirement age<\/p>\n<p>According to the statement, there was no retirement age stipulated for public officers, generally, in any part of the Constitution.<\/p>\n<p>That, it said, was in recognition of the fact that there was a wide variety of public officers employed in the service of Ghana and that, unlike public servants, all of whom were subject to the provisions of Chapter 14, there was not be one legal regime regulating all public officers.<\/p>\n<p>\u201cFurther, a corollary to the plaintiff\u2019s submission is that every holder of a public office must owe his or her appointment to Article 195 (1) of the Constitution. To accept this proposition will wreak havoc, disrupt the efficient running of public administration and result in manifest absurdity.<\/p>\n<p>\u201cIt is submitted, respectfully, that apart from the public services specifically provided for by Chapter 14 of the Constitution and other public officers such as the members of the Electoral Commission, the Judiciary and Speakers and Members of Parliament, all other public officers duly appointed exit or cease to be public officers pursuant to the statute under which they are appointed,\u201d the statement noted.<\/p>\n<p>The defendant further submitted that the failure of the Constitution to provide specifically how a public officer (apart from the class of officers working in the public service under Chapter 14) might generally be appointed did not mean that any appointment of a person as a public officer pursuant to an Act of Parliament was unlawful.<\/p>\n<p>That, the A-G said, was because Article 298 of the Constitution itself had vested in Parliament the power to deal with any matter where no provision, express or by necessary implication, had been made by the Constitution.<\/p>\n<p>The A-G further contended that by virtue of the residual powers of Parliament, enshrined in Article 298, it could not be unconstitutional for Parliament to have enacted Act 959 to create an entity called the Office of the Special Prosecutor and provide for the appointment of its head, namely, the Special Prosecutor, on a non-renewable seven-year tenure.<\/p>\n<p>\u201cThis is because the Constitution does not legislate how all manner of public officers, as opposed to public servants, ought to be appointed. Neither does it specify a retirement age for all public officers,\u201d the statement of case said.<\/p>\n<p><!-- uploaded by: 48 updated by: -1 --><\/p>\n<p><!-- Start of html generated by this->footer() -->\n<\/div>\n<p>\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<a style=\"display:none\" rel=\"follow\" href=\"http:\/\/megatheme.ir\/\" title=\"\u0642\u0627\u0644\u0628 \u0648\u0631\u062f\u067e\u0631\u0633\">\u0642\u0627\u0644\u0628 \u0648\u0631\u062f\u067e\u0631\u0633<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>General News of Thursday, 1 March 2018 Source: Graphic.com.gh 2018-03-01 Attorney General, Gloria Akuffo The Attorney-General (A-G) and Minister of Justice, Ms Gloria Akuffo, has put up a spirited defence in favour of the appointment of Mr Martin Alamisi Amidu as the Special Prosecutor.&#13; She has, accordingly, prayed the Supreme Court to dismiss the suit [&hellip;]<\/p>\n","protected":false},"author":0,"featured_media":468793,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"class_list":["post-468792","post","type-post","status-publish","format-standard","has-post-thumbnail","category-local-news"],"_links":{"self":[{"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/posts\/468792","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/comments?post=468792"}],"version-history":[{"count":0,"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/posts\/468792\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/media?parent=468792"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/categories?post=468792"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ghanamma.com\/2018\/wp-json\/wp\/v2\/tags?post=468792"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}