THE LAW PLATFORM: LEGAL REFLECTIONS

ATTORNEY-GENERAL, ARTICLE 88, AND THE DISCIPLINARY

JURISDICTION OF THE GENERAL LEGAL COUNCIL: HAVE WE
CREATED AN ACHILLES-AT-LAW?

BY: JOEL TETTEH ZUTAH, ESQ.

INTRODUCTION

1. If you were familiar with the legend

of Troy, you might as well be familiar
with the story of Achilles. Achilles was
a fierce warrior who led the
Myrmidons to fight for the Greek
army in the Trojan war. In Homer’s
Iliad, Achilles was characterized as
invincible, having had his whole body
immersed in the river Styx, except his
heel, by which by his goddess mother
Thetis had held him. He would have
been immortal, but for that heel that
never touched the river.1 So yes,
Achilles was not actually invincible, if
you were wondering. His heel would
Author: Joel Tetteh Zutah Esq.
not let him be. And while his own
Myrmidons stood loyal to him, and many Greeks sang his praises, he was
despised by his own king for defying his authority. Now, here is the big question.
Has Ghana created an Achilles of an Attorney-General? If yes, by what heel have
we held him to account? Can the Attorney-General be brought to order in the

1
Homer, The Iliad of Homer (Gilbert & Rivington 1841).

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exercise of his Constitutional duties? And by whom must his conduct be

checked? Is it the General Legal Council (GLC)?

2. Since allegations of the Attorney-General’s ethical infractions in the Ato Forson

trial became public, intense debate has arisen over the disciplinary jurisdiction
of the GLC in such matters. Well-meaning Ghanaians and lawyers alike, now,
more than ever, have found cause to interrogate the position and powers of the
Attorney-General. While the intricacies of the court proceedings and the legal
tactics deployed by both the prosecution and defence lawyers in the matter may
in themselves be enough to confuse the wider public, the situation has been
confounded further by the influx of what appears to be politically-tainted legal
shenanigans. What is certain, however, is that not much has been proffered to
settle the ongoing discourse. In this opinion, I wade into the debate to address
the apparent confusion left by the ping-ponging of legal excursions into the
position of the Attorney-General, some of which clearly appear to have been
procured by political apparatchiks to mislead the public. But I fear that I might
leave you with even more questions than answers.

3. Let me hasten to say that the scope of this opinion does not extend to the merits
of the allegations raised against the Attorney-General or the substantive matter
pending before the High Court, but to address the simple question as to whether
it is permissible by law for the GLC to extend its disciplinary powers to the
Attorney-General. Perhaps a fundamental question underpinning the entire
discourse is whether or not the 1992 Constitution of Ghana intended the
Attorney-General to be a lawyer within the strict meaning of the word. This is
because the GLC is by law the body statutorily mandated to regulate the
discipline of lawyers.2 Therefore, if the Attorney-General were necessarily
required by law to be a lawyer, then his conduct would come directly under the
regulatory authority of the GLC. But even if that were not the intention of the
framers of the Constitution, there is still the question of whether or not the same
standard of ethical duty applicable to lawyers should apply to the Attorney-
General when he is performing his constitutionally mandated legal duties. I dare

2
See Section 1 of the Legal Profession Act, 1960 (Act 32).

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argue that the Attorney-General under the 1992 Constitution need not even be a
lawyer. But, where the Attorney-General is also enrolled as a lawyer, he is well
within the disciplinary jurisdiction of the GLC.3 I further argue that when an
Attorney-General conducts legal proceedings in Ghana, he is subject to the
ordinary jurisdiction and authority of the courts, which are empowered to check
the conduct of such proceedings.

WHO IS THE ATTORNEY-GENERAL? MUST HE NECESSARILY BE A

LAWYER?

4. It is imperative to understand the constitutional context and history of the

position of the Attorney-General in order to appreciate the nature of his role and
the limits of his powers. Under the 1957 Independence Constitution of Ghana,
the Attorney-General was a “public officer” vested with the “responsibility” for
the “initiation, conduct and discontinuance” of prosecutions on behalf of the
State.4 Under the same Constitution, Ministers of State could be appointed to the
position of the Attorney-General.5 In simple terms, the Attorney-General was a
public officer charged with the responsibility of State prosecutions. It would
appear that legal qualification did not matter so much to the framers to be
prescribed in this Constitution as an eligibility criterion for the office of
Attorney-General. The necessary implication then is that the Attorney-General
could have been a lawyer or not. What seemed rather important under that
Constitution was that the Attorney-General would bear the responsibility for
State prosecutions. And if we were minded to stretch that observation even
further, we might as well say that he could conduct those prosecutions by
himself or he could do so by a qualified attorney if he lacked the requisite legal
skill.

3
Note that by Rule 101 (2) of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I.
2423), a lawyer who is not admitted to practise law in Ghana is still subject to the disciplinary authority of
the GLC if that lawyer provides or offers to provide any legal services in this jurisdiction. So it does not
matter where the person obtained his qualification as a lawyer.
4
The Ghana (Constitution) Order in Council, 1957, Article 15.
5
ibid.

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5. Not much of a variance to the above constitutional provision was seen in the
1960 Constitution of Ghana. In the 1960 Constitution, the Attorney-General was
a “Minister” or some “other person” appointed by the President to bear the same
responsibility of public prosecutions.6 Here again, legal education or
qualification was not emphasized as a necessary eligibility criterion for
appointment to that office.

6. But there was an interesting modification to the law under the 1969 Constitution.
This time around, the Constitution provided that the Attorney-General shall be
a “Minister of State” and the “principal legal adviser” to the Government; and
that he could conduct criminal prosecutions by himself or by some other persons
authorized by him in accordance with law. It then added that “the Attorney-
General shall have audience in all courts in Ghana.”7 Arguably, the fact that the
Attorney-General was to be the principal legal adviser is not sufficient to imply
that the Attorney-General was to be a lawyer. In the first place, one needs not
necessarily be a lawyer to give legal advice. The Attorney-General under that
Constitution could have decided to procure such advice from a qualified lawyer.
Secondly, the power to authorize some other person to act on his behalf weakens
the assumption that some legal education was necessarily required of the
Attorney-General.

7. Thirdly, anyone could be granted audience in the Ghanaian court. The Ghanaian
court has the power to hear persons who show up in the courtroom if such
audience is relevant or necessary for the effective determination of the matter
before it.8 So clearly, making it mandatory for the court to grant the Attorney-
General audience could not necessarily imply that the Attorney-General needed
to be a lawyer. The necessary implication of that provision was that if the State,
acting by the Attorney-General, was minded to appear before any court in Ghana
in any matter of public interest, the court should hear him out. This was more of

6
Constitution of Ghana, 1960, Article 47.
7
Constitution of Ghana, 1969, Article 68.
8
See Section 63 of the Courts Act, 1993 (Act 459).

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a guaranteed locus standi or capacity to appear before the courts than a legal
qualification requirement.9

8. Perhaps, what potentiates the immediate observations is the report of the 1968
Constitutional Commission that drafted the proposal for the 1969 Constitution.
The Commission had originally proposed that a person eligible for the position
of Attorney-General ‘should be qualified to be appointed a Judge of the Supreme
Court and he may be removed from office exactly in the same way that a Judge
of a superior court of record, other than the Chief Justice, may be removed.’10

9. Indeed, Article 68 of the draft Constitution prepared by the said Commission

provided as follows:

(1) There shall be an Attorney-General who shall be the principal legal adviser to
the Government and who shall discharge such other duties of a legal nature as may
be referred or assigned to him by the President or imposed on him by this
Constitution.

(2) The President shall, acting in consultation with the Council of State, appoint as
Attorney-General for a period of seven years a person who is qualified to be
appointed a Judge of the Supreme Court.11 [Emphasis added]

10.The above propositions by the 1968 Constitutional Commission clearly sought

to create a two-sided Attorney-General who had a duality of ministerial and
legal obligations. By proposing that the Attorney-General should be qualified to
be appointed a judge, the Commission contemplated that the Attorney-General
should have had some legal qualification. That would have put the conduct of

9
See the case of The Republic v. High Court (Commercial Division) Accra, Ex Parte; Attorney-General
(NML Capital Ltd and The Republic of Argentina – Interested Parties) Suit No.J5/10/2013 dated the 20th
of June, 2013 where the Attorney-General entered a matter of public interest in accordance with a similar
provision under Article 88(6) of the 1992 Constitution of Ghana.
10
Constitutional Commission, Proposals of the Constitutional Commission for a Constitution for Ghana.
Report presented to the Constituent Assembly through the National Liberation Council (1968) para 380.
11
ibid.

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the Attorney-General under the direct check of the appointing Executive and the
General Legal Council.

11.But as is evident from the final provisions of the 1969 Constitution already
referenced, the propositions of the Commission were jettisoned, as no such legal
qualification criterion was retained. The unambiguous effect, in my opinion, was
that it was unnecessary for an Attorney-General to have a legal training or
qualification under the 1969 Constitution. It is also reasonable to conclude that
the framers knew what they were doing when they removed any legal
qualification requirement from the 1969 Constitution.

THE ATTORNEY-GENERAL UNDER THE 1992 CONSTITUTION

12.The 1979 constitutional provision for the office of the Attorney-General rather
bears a striking resemblance to that of the 1992 Constitution. Indeed, the two
provisions are nearly identical. I shall therefore not belabour the point by
proceeding to discuss the 1992 Constitution. Article 88 of the 1992 Constitution
provides for the office of Attorney-General as follows:

(1) There shall be an Attorney-General of Ghana who shall be a Minister of State

and the principal legal adviser to the Government.

(2) The Attorney-General shall discharge such other duties of a legal nature as may
be referred or assigned to him by the President, or imposed on him by this
Constitution or any other law.

(3) The Attorney-General shall be responsible for the initiation and conduct of all
prosecutions of criminal offences.

(4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit
of the Attorney-General or any other person authorised by him in accordance
with any law.

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(5) The Attorney-General shall be responsible for the institution and conduct of all
civil cases on behalf of the State; and all civil proceedings against the State shall
be instituted against the Attorney-General as defendant.

(6) The Attorney-General shall have audience in all courts in Ghana.

13.Here again, the provisions of the Constitution do not provide sufficient basis to
conclude that the Attorney-General must necessarily be a lawyer. Even though
Article 88(2) provides that the Attorney-General “shall discharge such other duties
of a legal nature”, one can safely argue that this constitutional duty does not
necessarily translate into an eligibility criterion or a requirement for some legal
training or education. In fact, the 1992 Constitution substantially mirrors that of
its antecedents as far as Article 88 is concerned.

14.But there is something particularly interesting about the drafts leading to the
final formulation of Article 88. The Committee of Experts that proposed the
initial draft for the 1992 Constitution had qualified what is now Article 88 (6) in
a manner that, perhaps, would have helped to erode any confusion regarding
the requirement for a legal training or qualification for the Attorney-General.
The Committee of Experts had proposed as follows:

(5) The Attorney-General shall have audience in all courts and tribunals in Ghana
and shall have precedence over all other lawyers. (Emphasis added).12

15.The secondary implication of the words “all other lawyers” in the above
proposition would have been that the Attorney-General would himself be a
lawyer. But this formulation was rejected since it is clearly not what we see in
article 88 (6) of the 1992 Constitution. The conclusion one is left to draw is that
the Attorney-General, within the meaning of Article 88 of the 1992 Constitution,
is merely an office or position which has no legal training or qualification as an

12
See paragraph 33(5) in the Committee of Experts’ draft provisions for the Executive in the Report of the
Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana. Report presented to
the PNDC (31 July 1991). pp. 197. <http://hdl.handle.net/123456789/1546> accessed 15 February 2023.

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eligibility requirement; and that, while the Constitution confers on the occupant
of that office the mandate to discharge duties of a legal nature, it is not
constitutionally required that the Attorney-General must himself be a lawyer.

DO OTHER LAWS AFFECT THE ELIGIBILITY REQUIREMENT FOR THE

OFFICE OF ATTORNEY-GENERAL?

16.The 1992 Constitution itself is not exhaustive of the laws of Ghana. Indeed,
Article 11 of the Constitution enumerates other sources of Ghanaian law.
Perhaps the most relevant other laws affecting the position of the Attorney-
General are the Legal Professions Act, 1960 (Act 32) and the Legal Service Act,
1993 (PNDC Law 320). Act 32, which regulates the practice of law in Ghana, was
enacted before the promulgation of the 1992 Constitution. Hence, it forms part
of the existing laws of Ghana and must therefore be interpreted to conform to
the 1992 Constitution. This is because Article 11 (4) of the 1992 Constitution
requires that the existing law should “be construed with any modifications,
adaptations, qualification and exceptions necessary to bring it into conformity to with
the provisions of the Constitution, or otherwise to give effect to, or enable effect to be
given to, any changes effected by this Constitution.”

17.Again, Article 2 (1) of the 1992 Constitution provides that any other law that is
inconsistent with the Constitution shall, to the extent of the inconsistency, be
void. What this means is that provisions of Act 32 affecting or purporting to
affect the constitutional function of the Attorney-General must give effect to or
enable effect to be given to Article 88. Therefore, any other interpretation of Act
32 that conflicts with Article 88 is rendered void by reason of Articles 2(1) and
11(4).

18.Now, how does Act 32 affect the Attorney-General? Act 32 was passed under the
1960 Constitution. Bear in mind that this was a Constitution which did not make
legal training or qualification an eligibility requirement for the office of the

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Attorney-General. Section 1 of Act 32 creates a body called the ‘General Legal

Council’ (GLC) to be concerned with the “organisation of legal education” and
“upholding standards of professional conduct”.

19.Section 2(a) of Act 32 effectively provides that a person shall be entitled to

practice as a barrister or solicitor in Ghana if his name had been entered on the
Roll of Lawyers in Ghana, except as otherwise provided in Section 8 of the same
Act 32. Interestingly, section 8 of Act 32 then provides that a person shall not
practice as a solicitor unless he had obtained a valid license from the GLC, with
the exception of “the Attorney-General or an officer of his department”; and that
no person shall be issued with a license to practice unless he has been previously
enrolled as a lawyer. Bear in mind that under the same Act, one requires some
approved form of legal training in order to be enrolled as a lawyer.13 The law
effectively makes it unnecessary for the Attorney-General or his officers to be
certified as lawyers, or to be licensed, by the GLC before being able to perform
their constitutional functions. It is also the reason why Section 56 of the Criminal
and Other Offences (Procedure) Act, 1960 (Act 30) permits the Attorney-General
to appoint persons such as police, public health and other officials as
prosecutors.

20. Act 32 thus clearly enables effect to be given to Article 88. Indeed, imagine a
situation where a sitting President appoints an Attorney-General who has no
legal qualification, and such an appointee is prevented from prosecuting matters
on behalf of the State merely because of his lack of legal training. Would that sin
against Article 88? Perhaps until such an appointment is made and the law is
actually tested, it only remains to be imagined. Interestingly, it would seem that
all the Attorneys-General appointed under the 1992 Constitution have been
lawyers. But the fact of this practice cannot undermine an obvious constitutional
arrangement.

21.Again, the Legal Service Act, 1993 (PNDC Law 320), creates a Legal Service and
defines it as comprising lawyers in the Attorney-General’s department in

13
See Sections 3-10 of Act 32.

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addition to other administrative and supporting staff, but does not make any
positive mention of the Attorney-General himself as being a member of the
Service.14 Interestingly, the Act attempts to rank lawyers of the Service from the
least in line (Assistant State Attorney) to the highest of its ranks (Solicitor-
General), all to the exclusion of the Attorney-General.15 Again, the Act empowers
the Attorney-General to make regulations for the discipline of officers of the
Service.16 So clearly, the Act recognizes the distinct constitutional position of the
Attorney-General (as Minister and principal legal adviser to the Government),
one that is not conditioned on being a lawyer. Of course, being a Minister of
State, the Attorney-General is charged with governmental policy
determination17 in addition to his legal advisory and prosecutorial roles. Perhaps
we can think of the Attorney-General in the same light as the Minister for Health.
Certainly, one does not need to be a doctor to be a Minister for Health under our
Constitution.

IS THE ATTORNEY-GENERAL IMMUNE TO THE DISCIPLINARY

JURISDICTION OF THE GLC FOR PROFESSIONAL MISCONDUCTS?

22.A professional misconduct is ‘an infraction of professional conduct and ethics’,

whereas ethics are rules accepted by a professional body as guiding the conduct
of its members. This point was emphasized by the Court of Appeal in the case of
Dr. Sandys Arthur v. The Ghana Medical Council.18 Therefore, an ethical
infraction or professional misconduct is a sin against a profession or its body of
practitioners. Whether or not such ethical codes are passed into law, the
overriding goal is to preserve the integrity and public confidence in that
profession. It stands to reason, therefore, that if an Attorney-General is not a
lawyer, he could not by any stretch of imagination be said to be subject to the
disciplinary jurisdiction of the GLC, the body concerned with maintaining the
14
See Section 1 and First Schedule to the Act.
15
See Section 4 and the Second Schedule to the Act.
16
See Section 17(c) of the Act.
17
See Article 76(2) of the 1992 Constitution.
18
Civil Appeal No. H1/214/2012. Unreported judgement of the Court of Appeal dated 31st July 2012.

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discipline of the professional brethren of lawyers. This is where I agree with my

learned brother and classmate, Iddi Muhayu-Deen, and those who propose alike,
that the position of the Attorney-General as a prosecutor is suis generis, one that
is birthed by the Constitution itself and unlike other legal practitioners generally.

23.But where an Attorney-General is also a qualified lawyer, he could not be

shielded by Article 88 against the disciplinary jurisdiction of the GLC. Except
that even if he was disbarred by the GLC as a lawyer, his mandate under Article
88 would still not be affected. What this means is that it is only his own legal
qualification as a lawyer that would be affected and not his ability to perform his
public duty as an Attorney-General. And this is irrespective of the fact that the
Attorney-General is by law a member of the GLC.19

24.Is the Attorney-General therefore beyond reproach when conducting

proceedings before the courts? Certainly Not! We may have created an Achilles-
at-law, but we certainly held him by his heel in doing so. Article 126 (4) is
succinct in providing as follows:

In the exercise of the judicial power conferred on the Judiciary by this Constitution or
any other law, the Superior Courts may, in relation to any matter within their
jurisdiction, issue such orders and directions as may be necessary to ensure the
enforcement of any judgement, decree or order of those courts.

25.The courts can therefore make orders or give directions in respect of the conduct
of the Attorney-General in cases where the Attorney-General is party to a matter
before them. Again, the Attorney-General could be held in contempt of court
under Article 126 (2) of the Constitution, since that provision does not express
any exception in favour of the Attorney-General. Also, under Article 82,
Parliament is empowered to pass a vote of censure for the removal of the
Attorney-General if it is minded to question his conduct to that extent. So the
Attorney-General is not above reproach. Checking the conduct of the Attorney-
General is only a question of political and judicial will. Indeed, in response to the

19
See paragraph 2 of the First Schedule to Act 32.

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application filed by my learned law teacher, Thaddeus Sory, which sought to

impeach the conduct of the Attorney-General and move the court to strike out
the charges preferred against the 3rd Accused person in the case of The Republic
v. Cassiel Ato Forson & 2 Others,20 the court demonstrated the above point in the
following words:

[T]he matters alluded to in the conversation and the fact of it, with the
Attorney-General being a lawyer are matters which do not fall within the remit
of criminal proceedings and the duty of this Court, but may fall under the ambit
of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I.
2423) which makes the General Legal Council the body responsible for dealing
with such alleged infractions.

26.The court was simply saying that it had not found the allegations of misconduct
against the Attorney-General sufficient enough to prove a violation of any rules
of criminal procedure in Ghana. Therefore, it could not be moved to order an
enquiry into the allegation. But, according to the court, the allegations could be
made at the GLC because the Attorney-General was also a lawyer.

CONCLUSION

27.The crux of my opinion is already laid bare, that within the meaning of Article
88 of the 1992 Constitution of Ghana, legal training or qualification is not a
condition precedent or sine qua non for appointment to the office of the Attorney-
General. Historical analysis of the antecedents of Article 88 clearly shows that
the framers of our Constitutions knew what they were doing when they
deliberately removed any form of legal qualification as eligibility requirement
for the office of the Attorney-General. It follows then that an Attorney-General
need not necessarily be a lawyer within the meaning of Article 88. If that were
also true, then one may as well conclude that the framers of the 1992 Constitution

20
Suit No. CR/0198/2022 dated 6th June, 2024.

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did not contemplate that the conduct of the Attorney-General should come
under the regulation of the GLC, unless the Attorney-General was also enrolled
as a lawyer. However, being a Minister of State and a prosecutor, there is no
doubt that his conduct could be checked by Parliament and the courts
respectively.

28.But mind you, interpretation of the 1992 Constitution is in the bosom of the
Supreme Court. So I am minded to quaff from the wisdom of the Supreme Court
that was brewed in the case of Republic v. High Court (Fast Track Division) Accra;
Ex parte Electoral Commission (Mettle-Nunoo & Others: Interested Parties).21 In that
case, their lordships cautioned that it would be safer for a lower court to defer
matters of constitutional interpretation to the superior wisdom of the Supreme
Court than to assume that its own views on a constitutional provision was likely
to be correct than that of the full complement of the highest court of the land. If
that caution was served to no less a person than a High Court judge, who am I
but a mere mortal!

29. I can’t wait for a superior opinion in response to this. May the law be with us all!

21
[2005-2006] SCGLR 514.

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