CHARLES AYUUNE AKURUGU V. THE ATTORNEY-GENENRAL

JUDGMENT

YEBOAH J.

Charles Ayuune Akurugu, the Applicant herein filed the present application on 22 - 12 - 2015 seeking the enforcement of his fundamental human rights and freedoms that he alleges the Republic of Ghana, acting through the Local Government Service, has breached. The Applicant, until his interdiction by the Service, was employed as Assistant Director of the Local Government Service and stationed in the Kumbungu District of the Northern Region of the Republic of Ghana.

The Applicant joined the Head of the Local Government Service to the Application, but upon application by the Attorney- General, the Court struck him out from the application as the 1st Respondent. Accordingly, the Attorney-General remains the only respondent for the purpose of the present application.

The Respondent vehemently contests the application with the filing of the affidavit in opposition on 13 – 7 – 2016.

In his affidavit in support of the application, the Applicant deposes in part but essentially as follows:

“6. That in the exercise, inter alia, of my freedoms of speech and expression as well as assembly did on the 14th day of October 2015 call a press conference in Tamale at which I announced the formation of the NGO Progressive Public Servants for the Total Overhaul of Public Sector (PPSTOPS). This event received media attention and attached hereto is evidence of such publication of said even marked Exhibits “A” and “A1”.

7. That, further to paragraph 6 supra, on the 12th and 17th days of October 2015 I authored two articles published on www.modernghana.com in exercise of my freedoms of speech and expression. Attached hereto and marked Exhibits “B” and “B1” are copies of said articles.

8. That I was, on account of events mentioned in paragraphs 6 and 7 supra, issued a letter of interdiction dated 30th October 2015 and signed for and on behalf of 1st Respondent alleging conduct in breach of the Code of Conduct and Conditions of Service of the Local Government Service. Attached hereto is a copy of said letter marked Exhibit “C”.”

These depositions clearly confirm the facts that the Applicant claimed to have formed the NGO Progressive Public Servants for the Total Overhaul of Public Sector (PPSTOPS) and authored two articles, which he caused to be published at www.modernghana.com.

Alarmed by the conduct of the Applicant, the Local Government Service set in motion their disciplinary procedure, which had the Applicant interdicted pending further inquiry. However, convinced that the constitution of the disciplinary committee and the interdiction were irregular and were likely to occasion unfairness and injustice, the Applicant has applied to this human rights court for the vindication of his human rights. According to him, the acts and decisions of the Respondent amount to:

(i) interfering with and seeking to prevent me from lawfullyexercising my Article 21 (1) (a) and (b), of the Constitution1992, rights and freedoms to free speech and expression, and of assembly and participation in demonstrations.

(ii) violating and seeking to violate the constitutional requirements in Article 23 to act fairly and reasonably and comply with requirements imposed on them by law as administrative bodies in pursuance of administrative justice.

(iii) violating and seeking to violate the statutory mandate and procedural requirements in constituting a disciplinary committee as stipulated in Sections 6(d), 11 and 48(a) and (b) of Act 656 and the Conditions of Service of the Local Government Service respectively.

(iv) violating and seeking to violate the policy procedural requirements for interdicting me and/or terminating my employment by resorting to processes alien to and in flagrant breach of Sections 9.4.12 and 9.4.14 Human Resource Management Policy Framework and Manual for the Ghana Public Service 2015 and also without regard whatsoever to the rules of natural justice.

(v) violating and seeking to violate my Article 24(1), (3) and (4), of the Constitution 1992, rights to work, form or join a trade union of my choice without restrictions except those inter alia in the interest of national security and public order.

For their part, the Respondent justifies the view that they take of the Applicant’s conduct and their handling of the Applicant’s case in the following words:

“8. That the Applicant’s act of spreading false and misleading information about the service by engaging in unauthorized publication of articles that are false, misleading and unsubstantiated constitutes misconduct and brings the good name of the Service into disrepute as provided for under the Conditions of Service of Staff of the local government Service and the Code of Conduct of staff of the Local Government Service.

10. That the Local Government Service Council which is the highest disciplinary authority has the power to delegate its authority to the Head of the Service, the Regional Co- ordinating Director, the Metropolitan, Municipal, district Co- ordinating Director where it deems fit as provided for in the conditions of service for Staff of the Local Government Service.

17. That the Respondent is not violating or seeking to violate the Applicant’s rights under article 24(1), (3) and (4) of the1992 Constitution nor has the Respondent prevented the applicant from forming or joining a trade union of his choice.”

In effect, whereas the Applicant contends that his right to freedom of speech and expression under article 21(1) (a) and (b) and his right to work and join a trade union of his choice under article 24 (1), (3) and (4) of the Constitution, 1992 have been infringed, the Respondent contends that none of such rights have been infringed by the Local Government Service. Additionally, whereas the Applicant contends that the Local Government Service has breached the provisions of sections 6 (d) and 11 of Act 656 paragraph 48(a) and (b) of the Conditions of Service of the Staff of the Local Government Service and paragraphs 9.4.12 and 9.4.14 of the Human Resource Management Policy Framework and Manual for the Ghana Public Service 2015 (HRMPFM), the Respondent contends contrariwise that they followed paragraphs 9.4.12 and 9.4.14 of HRMPFM.

In other words, two issues stand out for determination:

(1) Do the formation of the NGO and the publication of the two articles offend any of the rules and regulations of the Local Government Service or Public Service? If so, are the relevant provisions of the rules and regulations proportionate in the light of article 21 of the Ghana Constitution, 1992?

(2) Do the constitution of the disciplinary committee and the interdiction of the Applicant breach the relevant rules and regulations of the Local Government or Public Services?

In determining issue (1) above, I must be careful not to make a definite pronouncement on the first leg of the issue which is that there has been a breach or otherwise of any of the rules and regulations of the Local Government or Public Services. I need only find or hold that there is or there is not a legitimate reason to investigate the impugned conduct of the Applicant. This reticence is necessary in the event where I decide that the Applicant should avail himself for the inquiry. The second leg of the first issue as to the proportionality of the rules or regulations is very important. The second issue, however, does not call for the same reticence.

Indeed, all persons have the right to freedom of speech and expression, which include freedom of thought, conscience and belief. But, article 12 (2) of the Constitution, 1992 makes these rights “subject to respect for the rights and freedoms of others and for the public interest.” And, it ought also to be remembered that by the very nature of human rights, they “are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.” The issue, therefore, becomes whether the limit that the Public Service and Local Government Service rules, regulations, conditions of service and code of conduct place on the rights under article 21 of the Constitution, 1992 is proportionate or justified?

To answer the question of proportionality or justification, we need to refer to the Ghanaian Supreme Court consolidated cases of Ahumah v. Ocansey [2008] where the Court clearly adopted the Canadian proportionality test (the Oakes test) to determine whether a law or measure justifies the objective it seeks to achieve; or, whether the interference with a protected right is justified; or, whether the means is proportionate to the end. In these cases, the Supreme Court, speaking through the Chief Justice, stated:

“The Ghanaian decisional law on the proportionality test, known also as the Oakes test, with its two tier approach, was formulated by Acquah JSC, as he then was in Republic v. Tommy Thompson Books Ltd. (No2) [1996-97] SCGLR 484 at 500-501 as follows:

"Now from the language of article 164 and similar provisions like 21 (4) c, the law in question must be ‘reasonably necessary or required’ in the public interest, national security etc. This really implies that, for any law to qualify as being reasonably necessary or required the objective of that law must be of such sufficient importance as to override a constitutionally protected right or freedom. In other words, the objective of that law must not be trivial or frivolous, otherwise that law will not be reasonably necessary or required. The objective must be sufficiently important in the sense that it must relate to concerns which are pressing and substantial.

After this, it must further be shown that, the law itself is a fairly proper means of achieving this important objective. This will involve an examination of the provisions of the law to determine inter alia, whether the provisions infringe any fundamental principle of law like natural justice, and whether they unduly impair the constitutional right. The nature of the examination in the second stage will depend on the nature of the law and issues at stake."

Taking the facts of the present application into account, we shall run the Ghanaian Oakes test as follows:

What is the objective of the measure or law that denies to the public servant such as the Applicant the right to freedom of speech and expression through the formation of an NGO and publication of the two articles?

1) Is the measure to prevent the Applicant from forming an NGO or publishing the articles prescribed by a legislation? If so, is the objective of the measure sufficiently important? If the answer is no, the test ends (and the measure is struck down); if, on the other hand, the answer is yes, the test continues.

2) Is the measure proportional to the objective? The answer depends on the following subtests:

a) Does the measure infringe any protected right? If no, the test ends (and the measure is saved); if yes, the test continues.

b) Is the measure reasonably connected to the objective? In other words, is the measure reasonably capable of achieving the objective? If no, the test ends (and the measure is struck down); if yes, the test continues.

c) Does the measure least impair the affected right? In other words, is the measure the best alternative? If no, the test ends (and the measure is struck down); if yes, the test continues.

d) Finally, in terms of cost-benefit analysis, do the benefits of the objective outweigh the adverse effects of the measure taking into account all the circumstances? If the adverse effects of the measure outweigh the benefits of the objective, the measure fails the test (and the measure is struck down); if the benefits of the measure outweigh the adverse effects of the objective, the measure passes the test. And, the means is said to be proportional to the end or objective.

In the Code of Conduct for the Staff of the Local Government Service, Part II Canon 1, it is provided that “Officers and Staff of Local government shall serve the State with neutrality and anonymity in the national and local government processes.” In the pursuit of this principle, the Code provides further in Part II. 1.5 and 1.7 as follows:

“1.5. [Officers shall] never act as an agent of or for the interest of a political, social, ethnic or gender interest group.

1.7. [Officers shall] not attend or support the functions, programs and activities of political, social, ethnic or gender group in a private capacity and name or in circumstances unrelated to the discharge of the projects and tasks of the Local Service.”

Again, according to the Conditions of Staff of the Local Government Service, paragraph 8.4. thereof, “any act done by an employee without reasonable cause constitutes misconduct if it (b) contravenes any enactment relating to the Local Government Service... or (d) tends to bring the Local Government Service into disrepute.”

Going by the proportionality test, the first question will be what the objective is when the Local Government Service or the Public Service, for that matter, proscribes the formation of an NGO or denies public servants the right to publish such articles as the Applicant published? Neutrality, impartiality, anonymity, avoidance of conflict of interests and protection of the reputational integrity of the Service.

Is the measure to prevent the Applicant from forming an NGO or publishing the articles prescribed by a legislation? The answer is yes: The Code of Conduct for the Staff of the Local Government Service.

Is the objective of the measure sufficiently important? Certainly, neutrality, impartiality, anonymity, avoidance of conflict of interests in the Public Service and protection of the reputational integrity of the Service is critical; the measure to ensure and secure these values is sufficiently important. I am unable or now to conceive of an alternative to the measure and the Applicant has suggested none.

Is the measure rationally connected to the objective? In other words, is the measure reasonably capable of achieving the objective? The answer can only be yes.

Does the measure infringe any protected right? The answer is yes: the right to free speech and expression.

Does the measure least impair the affected right? Certainly, it does least impair the right to free speech and expression as regards officers such as the Applicant; it does not proscribe the whole right, it limits the right mainly where the officer “act[s] as an agent of or for the interest of a political, social, ethnic or gender interest group” or “attend[s] or support[s] the functions, programs and activities of political, social, ethnic or gender group in a private capacity and name or in circumstances unrelated to the discharge of the projects and tasks of the Local Service.” It is, therefore, little surprising when learned counsel for the Applicant submits, referring to section 10.3.1.1 of the Human Resource Management Policy Framework and Manual for the Ghana Public Service 2015, that “this provision [of section 10.3.1.1 of HRMPFM] ... is a clear recognition of the right to free speech and expression of a public servant as an individual and a citizen of Ghana as guaranteed by the Constitution without the purported, unwarranted and disproportionate, limitation sought to be imposed on said right by Respondent in dealing with Applicant in the instant case in his exercise of same.” In other words, learned counsel concedes that by itself the limit in section 10.3.1.1 is reasonable, legitimate and justifiable. The concern rather, it would appear, is the conduct of the Local Government Service, according to the Applicant.

In the Privy Council appeal of de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries and Housing [1998] 3 WLR 675, “[t]he Court had to consider whether the restrictions on the freedom of expression of a civil servant in Antigua and Barbuda were ‘reasonably justifiable in a democratic society’.” The Court answered the question as follows:

“25. .... In determining whether a limitation is arbitrary or excessive he [Gubbay CJ] said the court would ask itself:- “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measuresdesigned to meet the legislative objective are rationally connected to it; (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

26. Their Lordships accept and adopt this threefold analysis of the relevant criteria.

27. Their Lordships would be prepared to accept in principle that the first two of these criteria could be met in the case of civil servants once it is noticed that their special status, with its advantages and restraints, is recognised as proper in the administration of a free society.”

It was, however, on the basis of the third criterion (i.e. least impairment) that the respondent (the State) lost the appeal. The Court noted that it was necessary to distinguish between the different grades of civil servants for the purpose of applying the limitation or restriction to their protected freedom of expression. In default, the Court concluded that “[i]t was for the appellant to show that the restraint, with its qualification, was not reasonably justifiable in a democratic society and their Lordships are persuaded that that has been shown to be the case.” But, on the facts of the present application, it is instructive and worthwhile to remember that the Applicant is Assistant Director of the Local Government Service, that is, an officer; he is not a junior staff member.

Finally, in terms of cost-benefit analysis, I am of the respectful view that the benefits of the objective outweigh any adverse effect of the measure taking into account all the circumstances, particularly of the status of the Applicant as Assistant Director of the Local Government Service.

Accordingly, I hold that the relevant rules and regulations of the Public Service and the Local Government Service that limit the right to freedom of expression least impair the rights under article 21 of the Constitution, 1992 and are proportionate and legitimate, given the status of the Applicant as Assistant Director. The disciplinary committee of the Local Government Service may lawfully enforce them while taking into account article 191 of the Constitution, 1992.

Again, on the facts of the present application, article 24 of the Constitution, 1992 is obviously not relevant. The facts of the present application do not put in issue matters involving satisfactory, safe and healthy conditions of work, rest, leisure, remuneration, working hours or membership of a trade union. Even though the Universal Declaration of Human Rights provides specifically for the right to work and other ancillary rights in its articles 24, the Constitution of Ghana, 1992 only specifically provides for “the right to work under satisfactory, safe and healthy conditions...” and other ancillary rights in its article 24. Suffice it to clarify, without attempting to interpret article 24(1) of the Constitution, 1992, that there is a difference between the two rights, that is, “the right to work” and “the right to work under satisfactory, safe and healthy conditions.”

Further, there is no evidence on record to convince me that the Applicant’s NGO is a trade union. I have no registration documents before me and from the several communications of the Applicant, I am inclined to the conclusion that the Applicant is more a whistleblower than a promoter of an NGO.

The next issue to consider is whether the initiation of the disciplinary process, the constitution of the disciplinary committee, the interdiction and indefinite suspension of the Applicant breach of the relevant laws and regulations of the Local Government or Public Services? The learned counsel for the Applicant couches the Applicant’s plaint in the following terms in his written submissions:

“7.10 A casual observation of Exhibits “C” and “G” reveals a justification for Applicant’s rejection of the initiation of said disciplinary processes. The two separate letters are dated same day of October 30, 2015, they contain essentially the same information and instructions except that exhibit “C” is signed by Joseph M. Dasanah – Chief Director for the Head of Service, and exhibit “G” is signed by James Oppong-Mensah– Director, HRD for Head of Service. Exhibit “C” is announcing Applicant’s interdiction while exhibit “G” announces indefinite suspension of Applicant. Curiously, again however, exhibit “H” which is dated November 25, 2015 is signed by Secretary Eunice Osae of the service’s Council and copied to Head of Service. Sections 6(d) and 11 of the Local Government Service Act, 2003 (Act 565) expressly mandates the Local Government Service Council and not the Head of Service to perform said functions as initiating and constituting the Disciplinary Committee for the purpose sought to be pursued in the circumstances...”

In sum, the Applicant contends that the initiation of the disciplinary inquiry into his alleged misconduct and his interim interdiction or indefinite suspension are irregular. The Applicant relies on sections 6 (d) and 11 of Act 656 to buttress his contention, but section 6(d) merely provides for the authority of the Local Government Service Council to “develop policy guidelines for handling matters relating to recruitment, training, promotion, remuneration, discipline, arbitration and petition within the Service.” I do not see the relevance of section 6 (d) of Act 656 to the Applicant’s contention of procedural irregularity.

Section 11 of Act 656 is, however, pertinent. For, it is the Council that is empowered to constitute the disciplinary committee and “determine [its] membership, functions and terms of reference.” There is no evidence before the court to support the Respondent’s contention that the Council delegated this function to the Head of the Service. If there was delegation, the Council would not produce Exhibit H which suggests that the disciplinary committee was yet to be set up. It does appear to me from the evidence available that the Council stepped in following the Applicant’s protest that the disciplinary process was statutorily irregular.

It does also appear to me that the Applicant is justified in finding the situation into which the Service has put him as irrational. For, whereas Exhibit C emanating from the Local Government Secretariat (i.e. the Office of the Head of Service) informs him of his interdiction, Exhibit G which emanates from the the same Office of the Head of Service but purports to exists under the authority of the Council announces his indefinite suspension. Obviously, interdiction and indefinite suspension in the Ghana Public Service cannot rationally co-exist; this is because whereas interdiction in the Public Service must be for a known and statutorily limited period of time, indefinite suspension is the direct opposite.

DECLARATIONS

Accordingly, it is hereby declared that Exhibits C and G authored under the authority of the Head of Service are contrary to law and, therefore, null and void. The net effect of this declaration is that the Applicant has not been and is not on lawful interdiction or suspension. The Council may take the necessary statutory steps to interdict or suspend the Applicant, if the Council considers it fit.

From the foregoing, and having considered all the evidence before me and the legal submissions urged on me by learned counsel on both sides, I am the respectful view and hold accordingly that:

(a) There is no legal basis to draw the conclusion that the Local Government Service unlawfully interfered with or sought to prevent the Applicant from lawfully exercising his rights under Article 21 (1) (a) and (b), of the Constitution 1992, that is, his rights to free speech and expression, right to freedom of assembly and right to freely participate in lawful demonstrations;

(b) There is a legal basis to draw the conclusion that the Local Government Service violated the constitutional requirements in Article 23 to act fairly and reasonably and comply with the requirements imposed on the Service by Section 11 of Act 656 and paragraph 9.4.12.0 of the Human Resource Management Policy Framework and Manual for the Ghana Public Service 2015 as administrative bodies in pursuance of administrative justice;

(c) There is a legal basis to draw the conclusion that the Local Government Service violated the statutory mandate and procedural requirements in constituting a disciplinary committee as stipulated in Sections 11 of Act 656;

(d) There is a legal basis to draw the conclusion that the Local Government Service violated the procedural requirements for interdicting and/or indefinitely suspending the Applicant by resorting to processes alien to and in flagrant breach of paragraphs 9.4.12 and 9.4.14 OF Human Resource Management Policy Framework and Manual for the Ghana Public Service 2015; and

(e) There is no legal basis to draw the conclusion that the Local Government Service violated the Applicant’s rights under Article 24(1), (3) and (4), of the Constitution 1992.

In the result, I hereby grant the claims to reliefs (b), (c) and (d), and dismiss the claims to reliefs (a) and (e).

ORDERS

In pursuance of declaration (d) above, that the interdiction and/or indefinite suspension of the Applicant is wrongful, null and void for being in flagrant breach of paragraphs 9.4.12 and 9.4.14 Human Resource Management Policy Framework and Manual for the Ghana Public Service 2015, I hereby order that:

(i) the Local Government Service stop forthwith the deduction and retention of 50% of the Applicant’s monthly salary on account of the wrongful interdiction and/or indefinite suspension of the Applicant;

(ii) the Local Government Service pay over (i.e. refund) to the Applicant forthwith the aggregate of the 50% of his monthly salary deducted and retained by the Local Government Service as a result of the wrongful interdiction and/or indefinite suspension of the Applicant.

For the avoidance of doubt, the Local Government Service Council is not enjoined in future from taking the prescribed statutory steps to interdict the Applicant as the Council considers fit pending investigation into the alleged misconduct of the Applicant.

The Application succeeds in part.

I award no costs for the Applicant as his learned counsel is not desirous of asking for same. According to learned counsel for the Applicant, his reason is that even though reliefs (a) and (e) have been dismissed contrary to his wish, he concedes that the reasoning leading to the Court declining to grant same, being the discussion on the proportionality test, is seminal and would provide substantial guidance to all of us for our future conduct.

COUNSEL

SAMSON LARDY ANYENINI ESQ. FOR THE APPLICANT

YVONNE ABOAGYEWAA AWOONOR-WILLIAMS (MRS),(SENIOR STATE ATTORNEY) FOR THE RESPONDENT