Godwin Edudzi Tamakloe, Lead Counsel for the leadership of the Minority Caucus in Parliament, says the Ghana Police Service has no capacity to run to the High Court to conduct any case on behalf of the Republic.
The police have a fiat to prosecute or conduct specific cases on behalf of the Attorney-General (A-G) at the lower courts – District and Circuit courts – but not the superior courts – High, Appeal and Supreme courts.
Mr. Tamakloe raised the preliminary objection against a motion filed and signed by the Police Director of Prosecution, Superintendent Sylvester Asare, to bar the Minority leadership from protesting against the Bank of Ghana and its Governor, Dr. Ernest Kwamina Yedu Addison.
The court, presided over by Justice Edward Twum, was told by Lawyer Edudzi that: “The motion paper is signed by Supt. Sylvester Asare. We wish to say that the signing of the motion paper and the conduct of this case by the said Supt. Sylvester Asare Esq. offends Section 19(a) of the State Proceedings Act, and same ought to be struck out as defective.”
He explained that the motion paper made pursuant to the Public Order Act was an originating action with the same effect as a writ or petition.
Thus, per Article 88(5) of the 1992 Constitution, and the State Proceedings Act, it was only the A-G who could institute the instant action.
“Lawyer Sylvester Asare is not the A-G or an officer authorised by the A-G, and, therefore, cannot purport to sign this originating process for and on behalf of the Republic,” Lawyer Tamakloe argued.
He added that the A-G by a fiat allow the police to prosecute criminal cases and nothing more, urging that if the police wish to do the right thing, they could get the A-G to issue a fiat under Public Order Act, and they do not have any problem with that.
The Lead Counsel also contended that in one breathe the instant application was titled the Republic versus Dr. Cassiel Ato Forson, Emmanuel Armah Kofi Buah, Kwame Governs Agbodza, Masawudu Mahama, Bernard Mornah, Rex Owusu Omar, and Samuel Okudzeto Ablakwa, while at another point the applicant was Isaac Yeboah.
He stated further that the affidavit in support indicates that Supt. Isaac Yeboah was an applicant in the case by virtue of being granted authority by the Inspector General Police (IGP), and submitted that the Ghana Police Service was a corporate body to sue and be sued in perpetual succession, and that the IGP had no bearing on the application.
He quoted authorities such as Justice Date-Baah in the case of Ghana Lottery Operators vs. Ghana lottery, Republic vs. Cecilia Dapaah, Republic vs. Circuit court Accra exparte Gifty Oware-Aboagye vs. AG and Police (unreported) to support his argument.
Supt. Asare was opposed to the application on the grounds that the Ghana Police Service was a corporate body, which could sue and be sued.
He rebutted that since the Ghana Police Service could sue and be sued, filing the process before the court did not render the application irregular.
Supt Asare added that “I will continue to refer to Tsatsu vs. CJ (I will furnish the court with the citation) it was followed by Amegatcher, the Supreme Court in this case and A-G places the flurry interpretation of Article 88(5), which confers the A-G the legal office of the state and the requirement stated among other things that constitutional bodies or institutions established by the Constitution, including CHRAJ, should be allowed to sue and be sued or initiate an action in their processes
“We admit that the A-G is a nominal defendant in actions brought or commenced by the state, from these decisions of the Supreme Court, it is clear that Ghana police service being an institution in charge of internal security is alluded to these processes.”
He argued that the Public Order Act is clear as to who should apply because the matters therein bother on security, adding that the application is competent.
Demonstration postponed
The MP for Bawku Central, Mahama Ayariga, told journalist at sitting that the issues raised by Mr. Tamakloe have really not been canvassed in any court before, and therefore, the judge feels that he needs to take a more serious note at the arguments.
He said the judge has adjourned sittings to Friday to deliver ruling on the preliminary objection raised.
The MP added that “So as law abiding citizens, we don’t want to side step the police because we will need them to protect us one day, but the court has not stopped us from demonstrating or changed the route of the demonstration or they have any intention to change the route of the demonstration.”
