Lockdown Blues: Ghanaian Lawyers sitting on a time bomb soon to explode

1.0  Introduction:

1.1  “Many are the afflictions of a righteous man” so says the Good Book, “but the Lord delivers him from all”. This is a good cheer for a righteous man or what we may call, “a story with a happy ending” for a righteous man. However, permit me to ask about the afflictions of a Ghanaian lawyer reeling under the multifaceted effects and consequences of the Covid-19 pandemic as well the legal regime introduced by the lockdown. Much as I wish to be calm, candour impels and compels me to state I am neither cool nor comfortable with the present way of handling matters of lawyers under the present precarious circumstances.

2.0  Capturing the main issue

2.1  In my earlier write-up on this subject, I had formed the irresistible impression (if not a firm conviction) that there was a fatal error in omitting to specifically mention lawyers as providers of essential services, who were entitled to an exemption from the restrictions imposed by the trinity of laws (Act 1012, E.I.64 and E.I.65) introduced by our elected representatives, namely, the Executive and Legislative arms of government, for dealing with the Covid-19 pandemic.  This is embarrassing if we consider that the President himself is a lawyer of no mean repute, and the additional fact that the legal profession has more than its fair share of representation in parliament. So how could they have forgotten? My answer remains as before: they forgot because they are human beings like all of us.

3.0  Additional insights received from other jurisdictions.

3.1  Whatever lingering doubts that existed in my mind on this issue on the previous occasion has since dissipated upon my attention being drawn to the experience of other jurisdictions where matters have been put beyond a shadow of doubt by laws or regulations published under similar circumstances as ours, which expressly recognize legal services as “essential services”.  I refer, in particular, to a Notice dated 3^rd April, 2020, put out by the Law Society of Botswana wherein it is stated that pursuant to “the Emergency Powers (COVID-19) Regulations, 2020, “Legal services have been declared an essential service”.

3.2  Also, since we have a fatal attraction to our colonial master, Great Britain, in almost everything we do, permit me to point out that on 20^th March,2020, the same day Act 1012 came into being, and before E.I. 64 and E.I.65 were enacted, the Cabinet Office and Department of Education jointly published a list of Critical Sector Workers exempted from their lockdown rules and regulations. The list was separated into eight categories. The third on the list was “key public services” which was defined to include “those essential to the running of the justice system”. This was as clear as the sunlight from the night.

3.3  Accordingly, the Honourable Chief Justice was right when he stated the obvious that “ the restrictions imposed on the citizenry …affect all lawyers and litigants and/or other court users”. But were we also not right when we took issue with him for his failure to illuminate our path regarding how a lawyer subject to a restriction law could at the same time be required to discharge “essential” services during a lockdown?

4.0  Do we really need a rancorous debate on this issue?

4.1  The kind of lingering debate raised by this apparent contradiction is totally needless in a time of emergency. In a society ruled by “laws” and not “men”, there should have been a quick fix to the riddle by now. All that the President and his host of legal advisors should have done by now was to introduce a new Executive Instrument to specifically declare legal services as an essential service subject to exemption under the law.

4.2  Of course, this may be accompanied by some further regulations setting out the full parameters of specific “dos”, as done by the Law Society of Botswana, having regard to the peculiar circumstances of the times. The fact that our elected representatives have not found the need to do so, nor evinced an intention to do so, speaks volumes about our ability to mystify the simplest issues.

4.3  In the meanwhile, we find ourselves in a state like the proverbial phantom in Fante folklore called “osamantan” who, unlike the real ghost (osaman) who is reputed to live out of town and comes into town during the night to scare anyone he confronts, hovers around the outskirts of town in broad day light and scare children. Either or both ways, they provide uneasiness to their victims and are not be encountered with ease.  

4.4  So the old debate rages as to whether lawyers are permitted by law to render legal services in these times even though not specifically exempted from the restrictions imposed by law and, if so, what kind of legal services lawyers can render. Further, are the legal services confined to matters or issues arising out of, or related to the trinity of laws and the 28 special courts created by the Honourable Chief Justice? Or does it relate to legal services generally? With regard to legal services generally, and in view of the Honourable Chief Justice’s direction to Registrars to adjourn all cases to May and June 2020, has the lockdown affected the computation of time for parties to file processes, et cetera?

4.5  I guess we can all have good views on these issues one way or the other, but my question is, is it really necessary to put lawyers to all this unnecessary debate when all could have been resolved by one short piece of legislation? Do we lack the men or the ability? Do we need foreign aid to resolve these issues?

5.0  New developments that cast a further pall on the debate

5.1  While we ponder over these matters, I mean, while we dither and fritter, and before you offer your opinion, I wish to bring to your notice that the Registrar of the Court of Appeal, Koforidua, has served our law firm with Hearing Notice to appear with our clients before the Court of Appeal, Eastern Region, on 28^th April, 2020. The business for the day is for the appellants, our clients, to show cause why their Notice of Appeal must not be struck out for non-compliance with rules of the Court of Appeal mandating or requiring them to file Appellants’ Written Submission within 21 days of receipt of Notice of Dispatch of Appeal Record (Form 6).

5.2  Bear in mind that, according to the Honourable Chief Justice’s directive contained in the Press Release dated 30^th March, 2020, “ the restrictions imposed on the citizenry of Greater Accra … affect all lawyers and litigants”. Also, by his directive contained in the earlier Press Release dated 16^th March, 2020, “Judges and Magistrates should only hear cases which are of extreme urgency”.

5.3  Ex facie the Court of Appeal’s record, both lawyers for the parties have offices in Accra, and not in the Eastern Region. So did we go or did we come? Does the direction given to Registrars to adjourn all cases to further dates include the power and direction to them to issue hearing notices to lawyers and parties to appear the courts or Court of Appeal in particular to do normal business? Does the freedom given to the judiciary to perform its functions during the period of the lockdown oblige or compel lawyers to appear before judges anyhow, as in this case? Is time still running during this period of lockdown, and for what type of cases?

6.0  The confession of my confusion.

6.1  I must confess that I have completely lost track of what is presently going on with the legal system during this period of lockdown. I am not sure the virus has attacked the system. No, nonetheless, I am genuinely confused by the non-existence of any coherent body of legislation or regulation regarding what lawyers may do or must not do during this period. I confess to having little understanding of these matters. I therefore throw an invitation to those of better understanding to help illuminate the path of those of my rank and thinking. In the absence of any clear tailor-made rules or regulations, my only clear caveat is “cucullus non facit monachum:, that is to say, “ a hood does not make a monk”.  Take it from me: Ghanaian lawyers are sitting on a time bomb and we may awake too late to realize it.

6.2  If my advice is worth anything, I would say that in addition to whatever our elected representatives may or may not do to put lawyers’ role under the Imposition of Restrictions Act, 2020(Act 1012) beyond a shadow of doubt, I may also add that it is about time that our Rules of Court Committee started to review and recommend changes to our court rules so the court system can respond timeously to ongoing needs in the wake of the COVID-19 pandemic.

6.3  DULY SUBMITTED.

From: Kweku Y.Paintsil, Esq.

The views expressed in this article are the author’s own and do not necessarily reflect The Chronicle’s editorial stance.

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