And the scale tilted in favour of causing financial loss to the state. (Photo Credit- Vector Stock)

Growing up, I wanted to be a Lawyer. My late dad, Godfrey Ayettey Mensah, even had cause to nickname me “Tawiah Lawyer” because he found me very argumentative, occasionally.

But I gave up that ambition upon the realization that the books that one had to read before, during and after becoming a Lawyer, were numerous and voluminous.

Therefore, anytime I get the opportunity to learn anything law-related, I pay critical attention. Currently, I rarely miss The Law on the JoyNews Channel- Sundays at 2:00pm, hosted by Samson Lardy Anyenini. Very educative and informative.

Law-based Latin expressions, writs and words like ‘Quo Warranto’, ‘Functus Officio’, ‘Nemo judex in causa sua’, ‘Audi alteram partem’, ‘Ultra Vires’, ‘Habeas Corpus’, ‘Mandamus’, ‘Certiorari’, ‘In Toto’, ‘Inter Alia’, ‘Suo Moto’ ‘Locus Standi’ and ‘Brutum Fulmen’, excite me, beyond measure.

Thus, in this piece, don’t be surprised if I sound like a Lawyer. No impersonation intended please.

The only drawback for me as regards Law and being a Lawyer, is the fact about the residence of the law being the bosom of the judge. Hm!

Brutum Fulmen

Brutum Fulmen is a Latin phrase I first encountered in my Administrative Law class at the University of Ghana (UG), Legon.

It was Dr. Stephen Ahiawador (Lawyer) who explained that sometimes, a litigant may obtain a judgement in his or her favour. However, due to prevailing circumstances, the judgement will become inconsequential- Brutum Fulmen. For example, if ‘Asimesi’ owes you GHc10million, and you secure a ruling to the effect that ‘Asimesi’ should pay you. The following day, ‘Asimesi’ dies out of shock, and it turns out that ‘Asimesi’ does not have any thing to his name, the judgement is Brutum Fulmen.

Two weeks ago, the Speaker of Parliament, Rt. Hon. A.S.K Bagbin (Lawyer), had cause to use this phrase, thus evoking in me, memories of my days in UG.

In Mr. Bagbin’s instance, it was in reference to a statement issued by the Minister for Roads and Highways, Mr. Kwasi Amoako-Attah- also a Lawyer.

Here is what happened. There are two ‘Attas’ involved, so please pay attention.

Mr. Ken Ofori-Atta is the Finance Minister. He is the one who announced that government has decided to abolish payment of road toll by motorists, “Government has abolished all tolls on public roads and bridges. This takes effect immediately the Budget is approved.”

Obviously, this ‘Atta’ has been well briefed about Public Policy Making and the budget approval process, hence, is aware that he cannot ‘Suo Moto’ (on his own volition), scrap road toll without the express approval of Parliament.

This, is how he justified the decision to abolish road toll, “over the years, the tolling points have become unhealthy market centres, led to heavy traffic on our roads, lengthened travel time from one place to another and impacted negatively on productivity. The congestion generated at the tolling points, besides creating these inconveniences, also leads to pollution in and around those vicinities.”

In lieu of the road toll, Mr. Ofori-Atta proposed an Electronic Transaction Levy (e-levy). According to him, the 1.75% “e-Levy covers electronic transactions, including mobile money payments, bank transfers, merchant payments and inward remittances.” To enhance financial inclusion and protect the vulnerable, “all transactions that add up to GH¢100 or less per day (which is approximately GH¢3,000 per month) will be exempted from this levy,” Mr. Ofori-Atta added.

Somehow, the other ‘Atta’, Mr. Amoako-Attah, the Roads and Highways Minister had a different understanding of the Public Policy Making and budget approval process.

Being a Lawyer and an MP, one would have thought that he would know better. However, as far as he is concerned, once the announcement had been made, the payment of road toll has become illegal. In more legal diction, the payment of road toll has become void because, in his considered opinion, the mere announcement in Parliament vitiates its continued collection.

Therefore, exactly 6 hours after the budget was read, and in spite of supposedly being outside the shores of Ghana, he caused to be issued, a statement as follows, “following the presentation of the 2022 Budget by the Hon. Minister of Finance on Wednesday, November 17, 2021, the Ministry of Roads and Highways hereby directs the cessation of the collection of road and bridge tolls at all locations nationwide. This directive takes effect from 12:00am on Thursday, November 18, 2021.”

As an Editor on duty at the time when the statement was released, I knew my Top Story had been guaranteed. Then the journalism maxim – check, cross-check and check, kicked in. We did and the veracity of the statement was confirmed. So Top Story it became, eventually.

Yet, my little knowledge of the Public Policy Making and budget approval process kept haunting me.

So, the following morning when I heard Kojo Yankson ask Dr. John Ampontuah Kumah, Deputy Finance Minister (a Lawyer too), on the Super Morning Show, about whether or not Mr. Amoako-Attah had the locus standi (capacity) to direct for the cessation of the collection of road toll, I focused my attention.

This was Dr. Kumah’s response, “If you want to introduce or reduce the fees, you need parliamentary approval, but if you are scrapping the toll, the Minister can do it.”

My reaction was, really? But Dr. Kumah’s tone of delivery and confidence in voice convinced me. Nonetheless, there was this little voice that kept saying, that’s not the case. My resolve was therefore to check.

Fortunately, by 5:30pm, the chickens, represented by the statements made by Messrs. Amoako-Attah and Kumah had come home to roost.

That’s because the Minority Leader, Haruna Iddrisu, another Lawyer, raised concern about the directive in Parliament. He contended that Mr. Amoako-Attah’s directive amounts to disrespect for the authority of Parliament.

Fortunately for Mr. Iddrisu, Speaker Alban Bagbin agreed with him and directed the Minister for Roads and Highways to, with immediate effect, withdraw his statement announcing the cancellation of road toll.

Rt. Hon. Bagbin posited, that Mr. Amoako-Attah is incapacitated, legally, to implement a policy proposal when it has not been approved by Parliament.

“They (Government) have been given the authority pursuant to Article 179 to prepare and lay before the House. So those are policy proposals that the Minister has presented to the House. Until they are approved, nobody has the authority to start implementing something that doesn’t exist. That amounts to a disrespect of the House.”

“I want to clearly direct that, what the Minister (of Roads) has released has no effect. It is Brutum Fulmen, an empty boast. I call on him to withdraw that directive.”

I got confused a bit about the Speaker’s explanation of Brutum Fulmen, so I googled and found these- meaningless thunderbolt, an empty threat, an ineffectual legal judgment. In other legal words, Mr. Amoako-Attah acted Ultra Vires- beyond his powers or legal authority.

But the Majority Leader, Osei Kyei-Mensah-Bonsu came to Mr. Amoako-Attah’s rescue with what I have no doubt that given the opportunity, my mentor Abdul Malik Kweku Baako would say, should be told to the marines, “I agree with the Minority Leader that we have not even started the debate on the policy let alone to vote on it. So the matter has not been concluded.

My understanding is that yesterday, after the delivery of the budget, confusion arose at the various toll booths and to avoid further escalation of the confusion and chaos, the Minister came with that directive. Mr. Speaker, that really is what happened,” he said.

This is what my Ewe cousins call ‘Alakpa’-Untruth, was my reaction.

The Deputy Minister of Roads and Highways, Mr. Stephen Jalulah latched onto this ‘Adesa’ (fiction) and stated confidently that the statement from the Ministry was an administrative procedure to forestall any confusion, after the announcement by the Finance Minister.

“So as of now, until further notice, we are not taking tolls at our toll stations across the country,” he said on Joy FM’s NewsNight programme on November 18.

Thus, pursuant to the directive by the Roads and Highways Minister and the corroboration by his assistant, collection of road toll ceased forthwith.

That means, the amount of money that would have been collected at the numerous toll booths are being lost since November 18, 2021.

The next question that plagued my mind is whether Mr. Amoako-Attah is not causing financial loss to the state?

Dr. John Ampontuah Kumah, the new Government Communicator

Indeed, in my candid opinion, Dr. John Kumah, Deputy Finance Minister, a Lawyer too, has led the communication effort as regards this budget very well, so far.

I say so because following the Speaker’s declaration of Mr. Amoako-Attah’s directive as Brutum Fulmen, Dr. Kumah returned to the debate during a press conference he held at the NPP headquarters the next day.

He explained that the Roads Minister cannot be faulted since he acted in accordance with law. “The Road Minister in his capacity and under the authority of the tolls Act, 1973, NRCD 153 and the 1992 Constitution, Article 297 (D), gives the Roads Minister the power to make such administrative decisions.”

He added that, “the Roads Minister did not repeal the law, he took an administrative decision to suspend the collection of road toll. He will follow up in Parliament if he wants to revoke the law.”

I also heard him explain that government was able to generate only GH₵78million from the road toll this year. However, through the e-levy, a projected amount of GH₵6.9billion would accrue to government every year. Part of this amount from what has been christened ‘MoMo tax’ would be used to improve Ghana’s road infrastructure among others.

He also described the road toll as inequitable, inefficient and impeding productivity for which reason they decided to suspend it. This is the aspect of the explanation that landed the message for me, “when we say it is inequitable, we mean that if you come to the plush areas in Accra, do you see any toll booth here?

But check the kind of properties we have here. They don’t pay road toll. But if you go to Kasoa, come and go 20 times, you pay road toll. Multiply it and that is how much the poor people pay.”

I live close to Kasoa, so I know the deplorable nature of the road used by my friends who live beyond the toll booth- very dusty in the dry season, muddy in the rainy season and unmotorable afterwards.

These friends of mine, always complain of weakened shock absorbers or defective ball joints, not to mention frequent slow puncture. Yet they endure the long traffic caused by the tollbooth and pay to use deplorable roads.

Accordingly, if and only if the money that would be accrued from the collection of the replacement for road toll, i.e, e-levy, would be used for the intended purpose, then as I stated in my previous article, I am for it, albeit at 1%.

This notwithstanding, the issue of whether or not financial loss to the state has been caused, still bothered me.

That is so because, it is my considered opinion that what is wrong is wrong, no matter how nicely it is explained by Dr. Kumah.

Causing financial loss to the state

The aforementioned legal gymnastics rekindled my frustration with the fact that lawyers differ on almost everything.

Why? Four lawyers, same law, different understanding. Yes four- Haruna Iddrisu and Alban Bagbin on one side and John Kumah and Kwasi Amoako-Attah on the other.

As is usual when such disagreements reign, the matter is taken to the Supreme Court for interpretation. Unfortunately, even at the Supreme Court, the case is decided merely on whether or not majority of the learned judges agree with one’s plea.

In my imaginary world, I, clothed with the rights of a bona fide citizen of the Republic of Ghana, decided to petition the top most on the hierarchy of the Superior Courts of judicature in Ghana, (The Supreme Court) to determine whether or not Mr. Amoako-Attah and his Deputy, Mr. Jalulah have, jointly and severally, caused financial loss to the state.

My petition is grounded on a revelation by the Ranking Member on Parliament’s Roads and Transport Committee, Kwame Agbodza, that between November 18 and December 31, “we are going to lose GHS10million in terms of road toll.” 

Therefore, in my application, I sought a true interpretation of Section 179(A) of the Criminal Code, 1960 (Act 29) which states that, “any person who by a willful act or omission causes loss, damage or injury to the property of any public body or any agency of the state, commits an offence.”

Still in my mind’s eye, I saw that the Chief Justice, His Lordship, Justice Kwasi Anin Yeboah, empaneled the five member jury as follows; Alban Kingsford Sumani Bagbin (JSC), Haruna Iddrisu (JSC) John Kumah (JSC) Kwasi Amoako-Attah (JSC) with Samson Lardy Anyenini (JSC) presiding.

After a long ‘in chambers’ discussion, Samson Lardy Anyenini JSC, presented the ruling as follows:

  • The basic principle of law is that, once a law has been passed by Parliament, which we have all given our power, to pass laws under the Constitution, that law cannot be reversed, cannot be suspended, cannot be revoked by administrative fiat or action.
  • When the law is in force, the only way to change the law or to stop the law or to revoke it, is to use the due process of the law and not by Executive fiat.
  • So either the law is amended, it has been repealed or a court has declared the existing law as being unconstitutional.
  • Article 297(d) of the Constitution mandates that, “where a power is conferred to make any constitutional or statutory instrument, regulations or rule or pass any resolution or give any directions, the power shall be construed as including the power, exercisable in the same manner, to amend or revoke the constitutional or statutory instrument, regulation, rule or resolution or direction as the case may be.”
  • Section 2 of The Tolls Act 1973, NRCD 153 gives road tolling power to the sector Minister by delegated legislation via Legislative Instrument (LI) or Regulations.
  • If the toll was by an instrument not referable to Parliament, then the Minister will be right even if his action is to suspend the levy. Unfortunately, the toll was by a legal instrument and referable to Parliament and the constitutional power to revoke, is governed by process and definitely not by a mere letter.
  • Again, it seems the toll was actually pursuant to LI 1660 or LI 2216 and fixed by Finance Minister rather. And an LI, once again is not amended, repealed or revoked pursuant to the power in Article 297 by a letter, but perhaps by the procedure in Article 11, which dictates how an LI is made by submission to Parliament and for the specified number of days to pass, before it will mature into law.
  • If the Roads and Highways Minister claims his action is not suspension of law, that would be untenable because the effect of his action produces that result. And if it is referable to the budget, too bad. Because, the budget at this time (when the directive to cease collection of road toll was effected), is only a proposal for the people’s representatives to approve or disapprove. Even if it is approved, the legal process must still be followed to revoke the law as there will not be automatic revocation by mere approval of the budget.
  • If it is not referable to the budget, then Speaker and Parliament have no power to punish him for contempt, but a court.
  • Even in the US where they have a different constitutional arrangement where the President is given power in certain situations to, by Executive Orders, perform certain functions without recourse to Congress, a President can’t annul or suspend a law he doesn’t like by himself and by a letter.
  • William Murphy, a Professor of American History, specializing in political history said “No” in response to the question, “Can an executive order of the President cancel any legislation or statute of the legislature?” 
  • This is the ruling of the Court.

It’s time to go

Therefore, in order to prove beyond reasonable doubt that financial loss of GHC10million is being caused to the state, I substitute the names of the individuals involved in the provisions of Section 179(A) of the Criminal Code, 1960 (Act 29).

Here we go; “Any person (Messrs. Amoako-Attah and Jalulah) who by a willful act (Directing cessation of collection of road toll without recourse to Parliament), causes loss to the state, commits an offence.”

There you have it. How a Brutum Fulmen an empty boast, which is deemed ultra vires could mean causing financial loss to the state.

Meanwhile, motorists have been enjoying the toll-less roads with glee.

As noted, this is me using my imagination beyond measure. How I wish someone will in reality, test the law in this regard, so our public office holders would know that ours is a country governed by Rule of Law, not on the whims and caprices of a Roads and Highways Minister and his Deputy.

Mr. Amoako-Atta is too boisterous. Is he not the one who said, “demonstrations don’t build roads?” such utterances of a public servant to the people he serves. SMH.

In remembrance of the Late Ex-President J.J.Rawlings, whose one year of passing was remembered on 12th November, 2021, I want Public Servants to be reminded that, “Power belongs to the People.”

It is such unfortunate statements, including; ‘yentie obia’, ‘corruption is from Adam, ‘eniɛ onko yɛ ɛ’ and ‘it is only in heaven that there is no crime’ that put you in the bad books of the people, hence incur their wrath, which they exhibit, when the time is right.

Chai-Kian – That’s goodbye in Taiwanese.

Let God Lead. Follow Him directly, not through any human.

The writer works with myjoyonline.com. Email- eric.mensah-ayettey@myjoyonline.com



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