Every Company at a point will require growth. Depending on the size of the company, investments may be required in the form of either equity (shares) or debt (loans). If the investment is acquired in the form of debt, then a financial institution may be resorted to on terms and conditions to be agreed between the institution and the company.
Some companies also prefer raising funds through equity by selling off their shares in other companies or issuing out new shares to other entities. Depending on the regulation of the company, where an existing shareholder decides to sell off its shares in an existing company, it must first offer the shares to other members of the company on terms and conditions before offering them to third parties if the members refuse the offer.
For this article, consideration will be given to all the requirements needed by either individuals or cooperate entities that are considering the acquisition of shares in other companies from existing shareholders.
Approved Resolution by the Selling Entity
Where the selling entity is a cooperate body, it must support the sale of its shares with a board of directors’ resolution approving the sale of shares. The directors are the governing minds and decision-makers of the company and the sale of shares (interest) in a company, being a material decision, must be supported with their approval.
The board resolution will usually approve the share transfer, resolve to issue a new share certificate to the buyer, cancels the certificate of the seller and amend the register of members of the company effective from the date of the transfer of the shares.
A special resolution will, however, be required where the company is issuing out new shares out of its authorized shares to third parties.
Approved Resolution by the Purchasing Entity
Likewise, the purchasing entity, if a corporate body, will require a board of directors’ resolution approving the purchase of shares from the selling entity. These resolutions must name the authorized signatory approved by the board to execute all documents necessary for the completion of the transaction.
Execution of Share Purchase Agreement
Both the selling and purchasing entity must execute a Share Purchase Agreement (“SPA”) detailing the terms and conditions of the contract. The SPA will indicate the number of shares being transacted and the consideration (monies) payable by the purchasing entity. It further defines the mode and agreed payment terms between the parties. It must be noted that only the authorized signatory must sign the SPA and it has to be stamped with the official stamp or seal of both the selling and purchasing entities.
Stamping of the Share Purchase Agreement
Following the execution of the SPA by both parties, the document must be stamped at the Lands Valuation Department of the Lands Commission. The SPA is a chargeable instrument and it is required to be assessed and stamped under the assessment. The amount chargeable is usually meagre and further to this, during the registration at the Registrar Generals Department (“RGD”) only stamped SPA’s will be accepted.
- Issuance of Share Certificate
Any Company shall within two (2) months after issuing out shares to an entity or individual must issue out a Share Certificate evidencing the transaction. The Share Certificate must be certified by one director and the secretary with an official company seal or stamp on the certificate. The certificate usually indicating the number and class of shares, amount of money paid or which remains payable and the name and address of the shareholder.
The Share Certificate is necessary as it is official evidence of ownership of the shares by the shareholder. Statements made in a share certificate under the common seal of the company or as certified by two directors and the Company Secretary of the company are prima facie evidence of the title to the shares of the person named in the certificate as the registered holder and of the amounts of money paid and payable on the certificate
Registration of Interest (Shares) at the Registrar Generals Department (RGD)
After the successful execution of the SPA and the issuance of the share certificate, the purchaser of the shares must take steps to register its interest at the RGD. The documents required to be presented are the approved resolutions from both the seller and the purchaser, the stamped SPA between the parties and the share certificate issued to the purchaser of the shares.
After the successful registration of interest at the RGD, the RGD will amend the profile of the company to reflect the new shareholding structure. The company must also take steps to amend its register of members and cancel the share certificate of the seller.
Again, the company must ensure that the changes to its shareholding structure are reflected during the filing of its annual returns at the RGD.
The acquisition of shares is relevant and must be done with all the necessary due diligence required for any business transaction.
As the operations of a company expand, it will be necessary to employ people to support the work under various arrangements. It is always advisable to spell out the terms and conditions into a contractual agreement. Once this is done, it defines the scope of work and the respective obligations of each other.
In Ghana, where the period of employment exceeds six months, it is a requirement that such a contract be reduced into writing by the parties.
This article examines the requisite terms and conditions that must be included in general employment contracts. It may, however, vary from institutions depending on the nature of business and scope of work for such institutions.
- Contracting Parties
The representative of the company signing all employment agreements must have the requisite capacity and authority to sign for and on behalf of the company. Practically, the Chief Executive Officer (CEO), the Managing Director (MD), or the Human Resource Manager or their nominated persons sign for and on behalf of the company.
- Period/Term of Employment
The employment contract must have a date of commencement. However, depending on the scope of work of the employee, the period of employment may have a specific timeline or otherwise. Where the period of employment is specific, it terminates automatically at the end of the period unless the same is renewed by the parties.
Practically, most companies limit the term to six months (probationary period) with the option to confirm after the probationary period on condition that they are satisfied with the employee.
- Scope of Work/Duties of Parties
The contract of employment must define the obligations and duties of both the employer and employee. It usually indicates the expectations of the employer, the place of work, designation of the employer, job title, hours of work, and any other obligations expected from the employee by the employer.
The scope of work usually contains statements that require the employee to abide by all company policies and procedures and a commitment to diligently work for the company during the period of employment.
The scope of work is critical as it is used as the basis for an employee to determine the employee’s capabilities.
- Salary/Financial Commitments
The contract of employment must clearly state the gross (without any deductions) and net (after all taxes and deductions) which the employee will be entitled based on the arrangements.
Where there are other benefits and allowances which may include health insurance, accommodation, transportation, travel allowances among other things, the same must be included in the agreement. Practically, most contracts of employment include clauses that have an effect that all expenses incurred by the employee in the course of the employment shall be reimbursed subject to the production of a receipt.
- Annual Leave/ Holiday entitlement
The contract of employment must indicate the number of annual leave days the employee is entitled. Legally, the minimum number of days in a calendar year should not be less than fifteen (15) days. It is worthy to note that during the period of leave days, the employee will still be paid the salary.
Employers must note that the annual leave must not be interrupted. That notwithstanding, if for any emergency reason the employee is required back to come back to work, the employee can be recalled on condition that the leave will be taken at a later date.
Practically, to assist management to properly plan leave days and ensure no interruption of work, most employment contracts include clauses that notice of any intended annual leave should be given between two weeks and one month before the due date.
- Confidentiality Clause
The contract of employment must include a confidentiality clause restricting the employee from disclosing any corporate information to third parties without consent. The information may relate to trade secrets, corporate information, finance, technical data, and know-how among other things.
This clause is important and a breach is likely to warrant termination in most companies.
- Termination Clause
The termination clause in a contract of employment is necessary as it defines the procedures to be taken by both the employer and employee should any of them decide to withdraw from the contract. Legally, termination can be by mutual agreement between the employer and employee, by the worker on grounds of ill-treatment or sexual harassment, where the employee is found on medical examination to be unfit for employment.
The law requires notices of termination to be included per the under listed details;
- Where the contract of employment is more than three years, one-month notice or one month pay in lieu of notice
- Where the contract of employment is less than three years, two weeks’ notice or two weeks’ pay in lieu of notice
- In case of weekly contract, seven days’ notice.
Practically, most contracts of employment go a step further to include the obligations of parties after any termination. This may include the return of all company assets, records, correspondence within a specific period, undergoing medical exit examination among other things.
- Other Clauses
The contract of employment must include a clause on disciplinary and grievance procedures, address to which all notices are to be sent to both the employer and employee, whether the company has the right to assign its obligations in the contract among other things.
In conclusion, it is necessary to reduce the agreed terms and conditions between the employer and employee into writing. This helps all parties to know their obligations and limitations in the course of their dealings with each other.
After the successful incorporation of a company, the law requires certain meetings to be held by the company as a going concern. Among such meetings are the Annual General Meetings (“AGM”) and the Board of Directors Meetings (“Board Meetings”).
Concerning the time interval for having an AGM, it should not be more than fifteen (“15”) months from when the last AGM was held. However, where a company holds the first annual general meeting within eighteen (18) months of incorporation, the company is not required to hold the annual general meeting in the year of incorporation or the following year.
Legally, Board Meetings should be held at least once every six months, but most companies prefer to have a quarterly Board Meeting. For this article, consideration shall be given to Board Meetings specifically the preparation stage, attendance and after the BOARD MEETING.
- Before the BOARD MEETINGS
Agenda for the Meetings
The agenda for the BOARD MEETING confirms the purpose of the meeting. It generally indicates the venue, time, attendees (board members and invitees) for the meeting. More importantly, it set outs the topics to be discussed during the BOARD MEETING.
Arrangement and Distribution of BOARD MEETING Packs
All BOARD MEETING packs (presentations) by the various departments are usually sent to all attendees before the meeting date. Depending on the size of the company, the presentations are usually from finance, business development, organization development, legal and compliance, operations and maintenance among other things.
The essence of sending the BOARD MEETING packs before the meeting is to allow all members and attendees to have enough time to review the updates and have foreknowledge of all issues that may be discussed at the meeting.
Board Minutes of Previous Meeting
Minutes of the previous BOARD MEETING should be carefully reviewed to ensure that it captures all the issues discussed at the meeting. In modern times, most board members prefer the minutes of the meeting to be sent electronically before the meeting.
Before sending board minutes to the board of directors, it is always prudent to first share drafts with each department heads to review and amend with all the necessary changes. The departmental head review is always critical as they are in a better position to confirm the content and do an initial approval before the minutes are sent.
This is to enable the board members to review the minutes before the next Board Meeting. Almost all Board meetings have action items that are to be completed by various department heads before the next Board Meeting. The Secretary is to follow up with the department heads and ensure that all items have been completed.
The minutes must be sent electronically to all the board members before the day of the meeting.
- During the conduct of the BOARD MEETING
Before the start of the meeting, all board packs (presentations), minutes of meetings, agenda and note pads must be properly arranged in order of the presentation on the desk of each board member.
This is critical as it sets the stage for ensuring that every board member has the required documentation needed for the meeting
Following the declaration of a quorum by the chairperson, the meeting will be deemed to start. The quorum of meetings is usually dependent on the regulations of the company and the number of board members required for the attendance of the meeting.
. Generally, the quorum is necessary for the transaction of business of the directors and a committee of directors may be fixed by the directors, and unless so fixed shall be two, or, in the case of a one-person committee, one;
Review and Approval of Previous BOARD MEETING
The minutes of the previous Board Meeting are reviewed by all the board members before approval. The board chairman usually makes inquiries on the action items from the previous Board Meeting as to whether or not the same has been fulfilled.
The company secretary has to take notes on observations made during the review and make the necessary corrections.
Recording Proceedings of the Meeting
The best way to capture all the proceedings of the meeting is to get a recorder if allowed, which will capture all the presentations during the meeting.
It is not necessary to transcribe all presentations as they are presented. To get a good minute from the presentations, it is always prudent to summarize most of the explanations given by the various department heads during the board presentation.
The secretary must concentrate more on the board resolutions concluded at each presentation and take note of such items. Further to this, action items required to be performed by the department heads for the next BOARD MEETING must also be recorded. This will serve as a guideline in the preparation of the minutes.
Again, it is necessary to be more attentive to details as most of the things to be captured in the minutes will be said orally and will not be found on the presentation.
- After the BOARD MEETING
The best time to complete all the minutes of the meeting is within the first week after the BOARD MEETING. This time is preferable as all the happenings at the BOARD MEETING will still be lingering in the mind of the secretary.
In summary, the essence of BOARD MEETING helps the board to plan, track, measure and evaluate the progress of the company.
There are many misconceptions about the business terrain in Ghana. The most evident one has to do with company formation.
It is not without doubt that most corporate institutions prefer contracts with corporate entities than individuals. Corporate entities give the contracting party the comfort of dealing with an institution which is a going concern and not an individual whose demise is likely to affect the operation of the terms of the contract.
This article highlights the basic requirements and knowledge for individuals who desire to form companies with ease need.
Name and Nature of Business
The first step in registering a company is to get a name for the company, the name must be unique, not misleading or undesirable (in the opinion of the Registrar) nor have been used by any other person before the registration. A search can be conducted at the Registrar Generals Department (RGD) to confirm whether the said name has already been taken.
Upon confirming the name, the applicant must be clear on the nature of the business. The nature of business simply means the purpose for which the company is created whether the business is created for services, manufacturing, transport among other things. There should be certainty and precision on the principal activities. The nature of the business can always be amended to include more so just be brief on the reasons why you intend to create the business.
Tax Identification Number (TIN) for Directors, Shareholders, and Company Secretary
All officers of the proposed company must have a Tax Identification Number(“TIN”). If an officer does not have a TIN, the TIN application takes between 3 to 5 working days to obtain at the Ghana Revenue Authority (“GRA”). The applicant must provide his/her name, occupation, Photo ID, mother’s maiden name, residential and postal address (digital/postal address) and contact details of the applicant
Appointment of Directors
Legally, you can include as many directors as you want upon incorporation. The only proviso is that it should not be less than two individuals.
Each of the directors must provide their residential address, business occupation, postal, electronic mail address as well as contact details of the directors must be provided. as well as indicate whether they are Ghanaian nationals or foreign entities (proof of which will be required).
Appointment of Company Secretary
Currently, a person must either be a chartered accountant, or a lawyer licensed to practice as a lawyer before they can serve as secretaries to countries. Among other things, the duties of the secretary will include compliance with the company’s constitution, filing of statutory forms as well as register.
A corporate entity can also be a company secretary by the requirements of the company law
Registered and or Principal Place of Business
An applicant must indicate the address of the house or building he intends to carry out business. The street, district, city, and region preferably the digital address must be provided. If the applicant has other places of business, it must be included as well. The postal address must be included as well as the telephone details of all the proposed contacts of the company.
Shareholders or Members of the Company
This is a critical issue all applicants must consider in the process of registering a company, the shareholders are the owners of the company. They make the decisions for and on behalf of the company. There can be one shareholder or several shareholders. The company as a whole must be specific on the total number of shares the company intends to subscribe (Authorised Shares) to and how many shares each applicant wants to subscribe it intends to subscribe to (“Issued Shares”).
The Applicant must also take into consideration the share capital it intends to invest in the company. It usually includes total consideration (cash) the applicant intends to obtain from the sale of shares as well as the total consideration received for every issue of shares otherwise than for cash. It, however, depends whether the applicant intends to go into the service industry or trading industry
For Ghanaian companies, the applicant is required to pay a stamp duty fee of 0.5% of the share capital to the RGD. However, if the entity is wholly owned by a foreign entity minimum $500,000.00 If the entity is jointly owned between a Ghanaian and foreigner, the stated capital shall be $ 200,00.00 but the Ghanaian applicant must have 10% equity participation
importers, dealers in general goods and retail trading, manufactures will require a minimum of $ 1,000,000.00 (Cedi Equivalent) in equity. Where there is Ghanaian participation the person must have 10% in equity participation. The applicants will be required to pay 0.5% as stamp duty on the stated capital at the time of incorporation
Registration with Ghana Investment Promotion Centre (GIPC)
Where the company is wholly or partially owned by a foreign entity, it will be required to produce evidence of registration with the GIPC. This is necessary to regulate the capital investments made by the entity in the country.
Business Registration Certificates
Upon successful incorporation, the applicant will be presented with the under listed information
? Certificate of Incorporation and Certificate of Commencement of Business
? Company Regulations
? Form 3 and 4
Company formation has become relevant in our evolving world and it is incumbent on any person who intends to enter into long term businesses to incorporate one.
Onesimos Barimah Osei
Legal and Compliance Manager
Genser Energy Ghana Limited
Every company at a juncture require growth. This progressive development will require investments to either revamp or increase the company’s annual turnover. Most foreign entities prior to investing in local businesses will require some legal due diligence (“Legal DD”) to be conducted on the company in order to be convinced that their investment will yield suitable returns.
The Legal DD on any company always covers various areas which includes but not limited to a critical assessment of the Corporate Information of the entity, regulatory compliance with the Companies Act of Ghana 1963, Act 179 (“Companies Act”), Local Assembly Laws, Foreign Exchange Act, 2006 (Act 723), Energy Commission Act of Ghana, 1997, (Act 541), Environmental Protection Agency Act of Ghana, 1994 (Act 490) and Regulations, Fire Regulations of Ghana, 2002 L.I 1652, National Petroleum Act, 2005 (Act 691), Ghana Investment Protection Law and Factories and Inspectorate.
The Legal DD report also acknowledges all reviews of material business contracts executed between the company and other third parties, any earlier financial arrangements entered into by the company and any security that encumbers the company’s current assets. It further acknowledges insurance undertaken by the entity on its assets. It also covers the company’s fiscal compliance with tax regulators beside a review of the company’s employees’ profile.
Further to this, the Legal DD report will also consider whether there are any pending material litigations that are likely to affect the governing structure and operations of the company.
- Corporate Information.
- Incorporation Information
The review will require the production of the Certificate of Incorporation, Commencement of Business as well as the Regulations of the Company. This is necessary to verify when the company was incorporated, registered address and its approved nature of business.
The Company must also provide evidence that it has commenced and completed the re-registration process with the Companies Registry and has acquired a new Tax Identification Number (“TIN”) and corporate registration number.
- Changes Effected
Any change of the corporate name, nature of business, directors, shareholders and secretary must be indicated by showing evidence of such changes filed at the Registrar Generals Department (RGD).
The report will require that all special resolutions passed, approving the said changes are filed at the RGD. Further to this, the schedule of shareholders from the inception of the company showing the names, number of shares, percentage of holdings and nationality of the shareholders will be required.
- Corporate Governance
The review will further concentrate on the governance structure of the company. With respect to this, the names and profile of all the current directors of the company will be required. The report will further require production of the number and terms of reference of the committees of the board of directors. If there are any new directors appointed, their offer of appointment and acceptance letters will be required for review.
The name and profile of the auditors of the company will also be required and a copy of the ordinary resolution of directors in respect of the appointment of the auditors. The written consent of the auditors will also be required for review by the foreign entity.
- Equity and Shareholding
The company will also be required to provide its schedule of subsidiaries and affiliates if any. This will include details of the incorporation dates, authorized business and shareholding of the company in the various subsidiaries or affiliate companies.
Further to this, a detailed equity holdings and investments of the company in other entities will also be critically assessed by the foreign entity.
- Financial and Capital Structure
The company will be required to provide copies of all the audited financial statement since incorporation of the company for review. On capital history of the company, forms 6, 7 and 8 filed with the Companies Registry and the evidence of payment of capital duty in respect of each issue of shares and increment in stated capital will be required if any.
- Compliance with Companies Act
- Filing of Annual Returns
The Company will be required to provide evidence of filing of its annual returns at the office of the Companies Registry.
- Minutes of Meetings
The company will be required to confirm that it has in accordance with the Companies Act been holding shareholders, annual general meetings as well as board of directors meeting. Evidence of that will be required to be produced by furnishing the entity with certified copies of its shareholders, board meetings and annual general meetings.
- Register of Members, Directors and Secretary
The Company will be required to confirm that it keeps and maintain register of members, directors and secretary. A certified extract of the said registers will be required. The details of the register should include all appointments and removals with supporting documents evidencing dates of such notices. Copies of form 17 filed at the Registrar Generals Department would be required.
Again, a confirmation that the company keeps and maintain a register of directors’ holdings. Further evidence of directors written consent to their respective appointments will be required for review.
- Compliance with Local Assembly Bye Laws
- Business Operating Permit and Business Operating Levy
The Company will be required to obtain the business registration certificate by the relevant district assemblies within the operating area. This permit is however subject to annual renewal by the relevant assembly.
Further to this, the Company will be required to pay its annual operating levy to the relevant assemblies in the respective district where its operations are based.
- Compliance with the Foreign Exchange Act
If the Company wants to make and receive payments in United States Dollars, it needs to provide evidence to the effect that it has applied for and obtained such approval form the Bank of Ghana to price and make payments in foreign exchange.
- Compliance with Energy Commission Act
The company will be required to obtain an embedded electricity generation license from the Energy Commission purposely meant to locate, construct and operate thermal plants within the country.
- Compliance with the Mining Act.
The company will need to furnish the foreign entity with evidence of registration with the Minerals Commission to provide services to a mining company. It further needs to provide evidence of having a valid a mining service operating.
- Compliance with the EPA Laws.
The Company needs to confirm that it has registered with the EPA as well as has a valid environmental permit issued by the EPA. Again, the Company will be required to show evidence that it duly submits its annual environmental report to the EPA in accordance with the EPA Act.
- Compliance with Ghana National Fire Service
The copy of the fire certificate issued for the companies’ operations by the Ghana National Fires Service with respect to its facilities. This is renewed annually and the company must take steps to renew the certificate. The essence of this certification is to ensure that the company is fire prepared for any eventuality that may occur in the course of its operations.
- Compliance with the Ghana Investment Promotion Centre (GIPC)
Where the company is wholly or partially owned by a foreign entity, it will be required to produce evidence of registration with the GIPC. This is necessary to regulate the capital investments made by the entity in the country.
- Compliance with the Factories and Inspectorate
The company will also be required among other things to register and obtain annual permit from the factories and inspectorate department.
- Adherence to Insurance Requirements
The company will be required to obtain and maintain various insurance policies which includes but not limited to an Asset and Machinery, Workmen Compensation, marine cargo insurance, premises and removal bonds among other things.
The report will require a confirmation from the insurers or brokers that the company has paid all its premium with respect to its insurance policies an undertaken that all the various insurance policies undertaken are adequate for the operations of the company.
In conclusion, the essence of the report is basically to provide comfort to the prospective lender and give them an assurance that the entity is a going concern and is compliant with all regulatory and statutory requirements.
Onesimos Barimah Osei
Legal and Compliance Manager
Genser Energy Ghana Limited
A fundamental Freedom that this constitution gives all of us is the Freedom to Think, Believe in Something and Academic Freedom. To say that you have a Freedom of Thought is to say that every individual has the God-given right to exercise his thought on any subject, anything so long as you want to. No one can restrict you not to think about Jesus, equally, you cannot be punished if you think of something immoral unless by God. The important feature to note is that so long as you want, you can think of anything without restriction. Of course, as Christians, this freedom is still limiting to us. Because whereas no one will punish you for lecherously thinking about someone’s wife on this earth except if you act on those thoughts, you will be punished as a Christian for exercising such thought because they form the basis of your action.
The freedom given to us to believe is equally a universal freedom that gives a person the right to have his belief in anything. This is equal to the belief that Vincent has in Joy Daddy Bitters. Vincent has the right to believe that if he drinks a lot of Joy Daddy bitters his hair will grow, that is a fundamental right of his even though he may be very wrong. This freedom is quite separate from the freedom of religion which we shall tackle next week.
The third Freedom is to have a Conscience. Everyone has a right to exercise his conscience and this is so fundamental that in certain cases, this freedom has been upheld even against the legislation. Last week, the last of three war heroes of America, died. These three war heroes were given their medals and made heroes because they stood against their own countrymen. To date, America’s toughest war is arguably the war they fought in Vietnam. That war was a Gorilla Warfare that defied all the knowledge and training that the Americans had about Warfare. The tactics adopted by the Vietnamese Soldiers was to hide in bushes, caves, etc, shoot and kill the American Soldiers and disappear. A lot of the American Soldiers died in that war. Most of the Soldiers were outraged by the type of tactics adopted by the Vietnamese Soldiers so much so that they spent their spleen or anger on the Vietnamese civilians. Now, these American heroes were named as such because whereas some of their colleagues were angry and shooting dead the Vietnamese civilians they encountered, these three great American Soldiers braced themselves in-between their colleagues and the innocent Vietnamese civilians. They faced their colleagues until they stopped the massacre. They saved a lot of innocent Vietnamese lives that day. The importance of this story to the topic we are discussing is that these three American heroes exercised their conscience against all odds. They could easily have joined their colleagues in the milieu but they chose to do what was right even though it was a difficult choice. The Americans had been surprised and taught a lesson that Warfare was not like a boxing match where you could see your opponent and dish out nasty blows to him. Rather, it was like a ninja training where you did not see your opponent coming but you knew he was there when you realize you are dead.
The constitution states that the dignity of all persons shall be inviolable. This means that no person’s dignity shall be violated in any form or shape.
As a rule, no person, whether or not he is arrested, restricted or detained, shall be subjected to further or other cruel, inhuman or degrading treatment or punishment. This is a cardinal rule to ensure that a person’s dignity is not violated. This means for instance, that the police cannot beat up a suspect to extract a confession from him. If they do that, the court will throw the case out. It is not only torture, but no person can subject his fellow to inhuman or degrading treatment. So a husband, for instance, cannot post the naked pictures of his wife on social media upon suspicion that she is unfaithful. Similarly, a boyfriend cannot strip his girl naked in public because she has refused him sex. A parent or guardian cannot burn the fingers of a child to stop him from stealing. Neither can a parent starve a child to get him to confess to a wrong. All of these are acts of cruelty and degradation of a person and the law frowns on it.
The constitution further prescribes that no person shall be subjected to any other condition that is likely to reduce a person’s dignity and worth as a human being.
A person who has been convicted for a criminal offense shall not be treated as a convicted person and shall be kept separately from the convicted person. In simple terms, this means that a person on remand shall not be kept in the same prison custody as the convicted person. A person on remand is a person whose case has not been fully determined by the court and there is a great likelihood that he would be found innocent. It is for this simple reason that the law enjoins a separation of such a person from the abode of the convicted person. The unfortunate reality is that the state has breached this constitutional obligation severally. Persons on remand are sometimes mixed up with convicted persons and the excuse we give is that there is not enough space. If we as a state want others to take the law seriously, then we have a responsibility to follow it to the letter.
On the 30th of May, 2017, we woke up to the gruesome news that a Captain in the Ghana Army had been lynched by Citizens of a certain town. Several videos have emerged showing Citizens committing the dastardly act. The most shocking of them all is the part of the video that shows a woman standing over the lynched body of the Captain and lighting a match to burn his mutilated body. A lot of us are outraged by it and many are shocked at the sheer cruelty. I was not surprised. I have been writing and speaking on mob injustice for many years. I was also not surprised because the citizens who are outraged now about the dastardly act, have either committed a similar act, watched others commit a similar act without lifting a finger to stop or they have given their approval for such an act with the usual rationalization that thieves are equally evil and a nuisance to our society.
Today, we shall look at Chapter 5 of the 1992 Constitution and select a few Articles therein that speak about Human Rights. The first would be Article 13, Clause 1 which states, ‘‘no person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of the Court in respect of a criminal offense under the Laws of Ghana of which he has been convicted’’. What this means is that it is only the Court of Law that can pronounce death on a man. That even the Court of Law can only pronounce death after the accused person has been charged with an offense and convicted of the offense and the sentence for that offense is the death of the accused. No other person or persons, regardless of the rationalization they have, in spite of the pain that may have been occasioned them by an act of a criminal, can choose to take the laws into his own hands and take the life of a human being.
Another important Article is Article 15, Clauses (2) (A and B) and they state as follows, ‘‘no person shall, whether or not he his arrested, restricted or detained, be subjected to:
- ‘‘Pain, torture or any other cruel or inhuman or degrading treatment or punishment’’.
- ‘‘Any other condition that detracts or is likely to detract from his dignity and worth as a human being’’. In the video, the people beat up the Captain until he died. In essence, they tortured him. They took away his dignity by stripping him naked and even at his death, the pictures show that he had been violated and totally undignified. Shortly after this, reports were given that the Military had descended on the town. Soon thereafter, pictures began to emerge of the Military either exacting vengeance or conducting investigations to identify the perpetrators. Whichever way you look at it, you cannot deny the fact that the town folk has also suffered some form of abuse. Much as I am against the lynching of the Captain, I am also against any sort of brutalization of the town folk. What the Police need to do is to arrest the Perpetrators who lynched the Captain and subject them to the full rigors of the Law. Speaking of the Police, it is little wonder that the Army resorted to carrying out the investigations by themselves. The police have acted incompetently in similar matters over the years. There has not been even one instance where a person involved in mob injustice has been arrested and prosecuted. The Police have always looked away and people have been emboldened to commit such dastardly acts.
Our final Article will be Article 19, (1) (c), it says ‘‘a person charged with a criminal offense shall be given a fair hearing within a reasonable time by the Court’’. Article 19 (2)(C) perhaps is the jurisprudence that underpins the philosophy of our criminal law and it states ‘‘that a person charged with a criminal offense shall be presumed to be innocent until it is proven or he has pleaded guilty’’. Thus, until the Court goes through a trial process to prove the accused guilty or unless the accused person pleads guilty himself, he is to be presumed innocent. The import of this is that whenever a person is accused of a crime whether he is an armed robber, a mobile phone thief etc., that person is innocent and should therefore not be touched by any person. The painful reality is that even if the accused person was sent to Court and convicted for the crime that he was accused him of, the sentence would not have been death but a few years in prison. How can it be that a person who steals a mobile phone, for instance, is beaten to death? The injustice of such mob behavior has its foundation in the fact that most of those who participate in the lynching did not see the person they had accused committing the crime. They only jump to the fray because someone told them. But we know people lie and lie every day. We also know there can be mistaken identity. Therefore you contributed to killing a human being simply because someone said they saw them committing the crime.
Consider this, what if the Captain and the many people who have been lynched were your brothers and friends.
Do we honestly believe that all these people needed to die? Would you not have at least wished the mob asked the person to state his side of the story? What if it is the case of mistaken identity?
Who made you a Judge of Human Life? Are you not a Christian who believes in the sanctity and the forgiveness of sin?
These are the questions that I ask myself every day but fail to get answers to. How can so much wickedness and cruelty reside in our hearts yet claim to be Christians?
The Freedom of Assembly includes the rights to take part in possessions or demonstrations. It is also a fundamental right given to every citizen. If a citizen is unhappy about things that are going on, the citizen reserves the right to demonstrate against those things. In fact, it is this law that has given rights to any and all citizens who have taken part in demonstrations. In the recent past, the Police were slowly but surely usurping these rights that have been given to a citizen. The Police did so by relying on the Public Order Act, which among others, required any citizen who wanted to demonstrate to notify the Police about their intention to demonstrate. Between the Police and the Demonstrator, they were to agree on the route, timeframe, etc. of the demonstration. The Police often acting in bad faith would surreptitiously go to the Court at the 11th hour without notice to the Demonstrator and stop the demonstration. On one or two occasions, one could understand why the Police could take such a step but the practice became so rampant that it became obvious that the Police were totally preventing the demonstration. The Court had to put its foot down to declare that the right of a citizen to demonstrate was fundamental and even superseded the inconveniences that such a demonstration will occasion the Police Service and that the Police did not have that right to go to court to stop demonstration especially when they did not do so by giving notice to the demonstrator.
This right of Association also includes the right of Assembly. Many people can organize and meet on any field of interest. Therefore, if Uncle Ebo Whyte wants to do a play and show it at the National Theatre, he does not have to take permission from anybody except the management of the National Theatre for the venue. Similarly, it is this Law of Assembly that allows even the Church to hold a gathering. Whereas the law gives all of us the right of freedom of religion, there needs to be a freedom of assembly which would allow us to hold masses together.
This same Law allows people working together or working in similar work areas to form a trade union who would negotiate terms with your Employer on your behalf. No Employer would succeed in Court if he dismisses an employee simply because they have joined a Trade Union. Therefore, the decision to join a Trade Union is exclusively an Employee’s decision. This, of course, means that no Employee can be forced to join any Trade Union.
This Right of Association and Assembly is extremely important and perhaps as important as the right of speech. Its absence could mean that a Government could make a law that would criminalize the association of 2 0r 3 persons. If any Government succeeded in that, what it would mean would be that before there is a gathering of 2 0r persons, permission ought to be sought and granted by the Government. Effectively there would be no Church Services unless the Government wished, no parties unless sanctioned by the Government, no anniversaries or celebration and I daresay that there would have been no intimacy between husband and wife unless they went for authority from the Government to allow them to associate. The absurdity of this situation would very much be an occurrence had the constitution not made a provision for these rights which we have often taken for granted but without which our lives would have been miserable.