Chipping in on the legal brouhaha about the age of the Special Prosecutor

The appointment of Mr. Martin Amidu to the office of Special Prosecutor may well go down in the history of presidential appointments as the most popular since the country’s independence, given the euphoria that attended this nomination. But Dr. Dominic Ayine, NDC M.P. for Bolga East and former Deputy Attorney General, has initiated suit seeking a declaration by the Supreme Court that upon a true and proper interpretation of Articles 190(1) and 199 of Ghana’s 1992 constitution, Mr. Martin Amidu, who is now 66 years old, is not qualified to hold the position of Special Prosecutor because he is past the constitutionally mandated age of 60 years; or even the window given for a public servants to continue in office up to age 65 years.

This lawsuit is becoming interesting since the venerable Prof. Asare, a U.S based legal luminary who has proven himself to be a true pillar in Ghana’s constitutional development, appears to uphold its merits, going as far as to posit that Mr. Amidu’s parliamentary vetting ought to have awaited the pleasure of the Supreme Court’s decision on the matter.

I don’t know the legal bases of this latter-day peroration. Neither do I know what Mr. Amidu is doing as a respondent/defendant in the suit, considering that the man did not appoint himself to the position and is therefore not answerable for the illegality, if any, of his appointment.

Be it as it may, it is the considered opinion of this writer that the lawsuit initiated by Dr. Dominic Ayine ought to be instantaneously declared brutum fulmen in its nature, frivolous in its form, vexatious in its intent, and generally unmeritorious in its purpose.

This is because the principles of statutory construction, the directive principle of state policy, compelling national interest, the concept of equal protection of the law, and the presumed general public policy against ageistic notions, all militate against the viability of this lawsuit.

Let me begin with the principles undergirding statutory construction; i.e. how the court interprets the law. First of all, it is trite law of jurisprudence that the interpretation of any statute should begin with its plain/facial meaning; and the analyses of the statute should end right there if the plain/facial meaning of the words in the statute is sufficient to capture the full intent of the legislative architecture. But when the meaning fails to yield a clear and unambiguous result, then the court must proceed to the law’s legislative history, duly taking into account the rationale and purpose the lawmakers had in mind when they drafted the law.

Furthermore, other prudential principles inform the foregoing, the first being that the law ought to be interpreted in order to avoid inconsistencies and absurd consequences. The second being the principle that the interpretation of the law ought to take into account the customs and traditions of the land, as well as the stares decisis of the courts. Lastly, the law must not be interpreted in isolation; rather, it ought to be construed in conjunction with other articles and provisions within the constitution. In this instance, the spirit of the law should trump the letter of the law.

With the foregoing in mind, we begin with the plain meaning of the constitutional provision under consideration.

Article 190(1) of the constitution clearly lists the public services of Ghana as follows: a. the Civil Service, the Judicial Service, the Audit Service, the Education Service, the Prisons Service, the Parliamentary Service, the Health Service, the Statistical Service, the National Fire Service, the Customs, Excise and Preventive Service, the Internal Revenue Service, the Police Service, the Immigration Service; and the Legal Service; (b) public corporations other than those set up as commercial ventures; (c) public services established by this Constitution; and (d) such other public services as Parliament may by law prescribe.

Article 199 of the constitution also states: (1) A public officer shall, except as otherwise provided in this Constitution, retire from the public service on attaining the age of sixty years. (2) A public officer may, except as otherwise provided in this Constitution, retire from the public service at any time after attaining the age of forty-five years. (3) The pension payable to any person shall be exempt from tax.

In its plain meaning, the foregoing articles are ambiguous because they talk about public offices, public officers and the retirement age of public officers. They do not specifically mention the Special Prosecutor’s office nor the appointment to office of public officers serving peculiar functions per se. And this distinction is important because although a person may have formally retired from public office, the law does not explicitly prohibit the re-appointment of the same person to any other public office for special needs. And to construe the law in any other way will lead to the fallacy of the contrapositive: A=B therefore B=A, a fallacy that is not sustained by common logic because B-A is not the same as A-B.

So on the facial interpretation of Article 199 of the constitution of Ghana, no reasonable conclusion could be drawn that the fact that the retirement age of a person in public office is no more than sixty-five years is therefore coextensive with the idea that a person older than sixty-five years could not be appointed to any public office. Such an interpretation could lead to absurd consequences, insofar as the legislative architecture, if it were intended to bar persons of over sixty-five years from being appointed to public office, would have explicitly said so.

And even if others disagree with this argument, it merely points to the fact that ambiguity exists in the provision; and therefore we must proceed to the legislative history of the statutes.

And here, we need to state at the outset that in an important matter such as the one under consideration, we must not impute to the law anything which it has not clearly and explicitly articulated by merely piecing together discrete provisions from several articles. A study of the legislative history will not yield any bar to the appointment of a qualified individual to the position of Special Prosecutor, and because the Supreme Court is dealing with a case of first impression, no precedents apply in this context.

Also, the fact that Clause 15 of the Special Prosecutor’s Act provides for the Deputy Special Prosecutor to hold office on the same terms and conditions as a Justice of the High Court does not imply any age limit for his appointment. This comparison is solely for the computation of the Special Prosecutor’s emoluments. We cannot impute to the legislature that which it has neither clearly stated nor unambiguously prohibited.

Moreover, if the law is construed in conjunction with other laws within the constitution, it favors the position that a person beyond the age of sixty-five could still serve in public office. After all the law in reference, Article 199, makes a general exception that “except otherwise provided in the constitution…..” That phrase in and of itself, is a safe harbor for a broader construction.

After all, Ghana does not have any age limits for most of its more important public offices such as that of the presidency, the legislature and the ministries and district and municipal executives. If, in even higher offices which require more rigorous judgments and activities in their nature and function, the constitution has not barred certain people of certain age from occupying such positions, it stands to reason to argue that the constitutional provision of Article 199 is not intended to act as an age limitation to scuttle special appointments.

In this view, coterminous laws in the country whereby retired or retiring public servants are also appointed on contract ought to be considered. In Ghana in particular, the teaching service is replete with people who are still effectively serving long after their age of retirement. Therefore if one views the matter in this context, one could safely argue that article 199 is not a bar to service to country.

Furthermore, the directive principles of national policy which undergird the considerations and contexts within which our laws ought to be construed, is against any limitation placed on any citizen who is qualified to serve this country. Under this part of the constitution, the law ought to be construed in its spirit to expand freedom and equality, not to restrict the rights of the citizens or to limit their opportunities.

Finally, within our traditional and customary laws, there is nothing like retirement age for those serving in their communities. On the contrary, the older a person is, the more he or she is viewed to have the wisdom and experience required to rule or lead. And our tradition and customs are also supported under international laws wherein any age discrimination is frowned upon as an abridgment of a citizen’s equal opportunities under the law.

In view of all the above, the Supreme Court of Ghana should quickly move to dismiss the law suit brought by Dr. Dominic Ayine and declare that under the plain meaning, statutory history, directive principles of state policy, general spirit of the constitution, and our customs and tradition, the Special Prosecutor is properly appointed and vetted to his position.

Samuel Adjei Sarfo, J.D., is a general legal practitioner in Austin, Texas, USA. You can email him at [email protected].