MAKOLA LAW

Abortions in Ghana

2011-08-02T12:55:00.000-07:00

Dear Reader,

A person who causes an abortion by any means (including a female who permits it to be done to her) commits an offence and (if convicted) may be jailed for up to 5 years.

Some abortions are permitted if done by a registered OB/GYN in an approved medical centre.

Permitted abortions may be carried out in cases where a pregnancy has resulted from rape, incest, or sexual intercourse of a female without full mental capacity.

Permitted abortions may also be carried out in cases where to allow the pregnancy to continue may lead to the death of the pregnant woman, or may cause her some serious physical or mental injury.

Further, permitted abortions may be carried out where there is a substantial risk of congenital or later physical abnormality or disease to the child.

In all cases of permitted abortion, the prior consent of the pregnant woman is required. If she lacks the capacity to give such consent, then it would be required from the person who is responsible for her well-being.

Custody Battles

2011-07-26T11:39:00.000-07:00

Dear Reader,

The 'Best Interest of the Child' principle, in practice, means an infant would normally be put in the custody of its mother if she has good character and the means to look after the child.

It would be strange for an absentee father to successfully win custody of a child with the intention of giving that child into the care of his mother (the child's grandmother).

Even where the biological mother does not have the financial means to look after the child, that is not enough reason to take the child away from her. This is because the father is still responsible for the maintenance of the child (and he can be compelled by the court to pay for the maintenance of the child).

From Accountant to Corporate Lawyer

2011-07-23T05:25:00.001-07:00

Dear Reader,

With your first degree (no matter in what subject) you pretty much qualify to apply to the faculties of law at Legon or KNUST.

You are quite a few steps from becoming a corporate lawyer:

1. Get into a law degree programme.

2. Choose electives (at the right time) with a focus on business law. Such electives include Commercial Law and International Trade & Investment Law.

3. Get into the Ghana School of Law after graduating with a law degree.

4. Graduate from law school and gain admission to the bar (become a lawyer).

5. Gain admission into a law firm which focuses on corporate law.

Good luck.

Challenging a Court Order

2011-05-20T05:56:00.000-07:00

Dear Reader,

I do not have enough information to give you advice on this matter (remember that the advice here is not meant to be definitive legal advice, but rather points of discussion. You must still see a lawyer immediately).

That said, from what you have said, your friend's strongest ground is his claim that he has not been notified by the court of the goings-on. I will let you know that in my 8 years' experience, such claims are either not true or untenable in any case. It may well be that your friend simply ignored court notices. It may be that your friend made himself or herself difficult to find to serve with court notices. If the second theory is true, the court could have ordered substituted service which means service by another means such as the newspapers or posting the notice on the court notice board and/or on the wall of your friend's building.

If in spite of the paragraph above your friend is positive that he or she has not been notified of the court proceedings as well as the order at the end of the proceedings, they may bring any of several applications to the same court which gave the order. Without discussing the fine, technical detail, such applications include:

- Application for Review (of the Court Order);

- Application to Set Aside the Order of the Court;

- Application for Stay of Execution (of the Court Order);

It may serve your purposes better to try some of these applications. If they are successful, your friend has respite. If they are unsuccessful, then your friend can go on appeal (but eventually, your friend is likely to lose the land since he is not a bona fide purchaser of the land without notice. This simply means that your friend did not do the requisite enquiry to find out if there were no competing interests in the land they bought.

Good luck to your friend.

Mentioning Competitors in Your Ads

2011-05-02T02:38:00.000-07:00

Dear Reader:

Within the limits of the law, a person should be able to mention their competitors in an ad.
Within the limits of the law means you must not defame (libel or slander) them.
Even if the words are spoken in the ad, the fact that the words are permanent (i.e. the ad has been recorded on DVD or in another form) makes it libel and not slander.
I believe you can for example say than your product is better than your competitor's.
You may even be able to say yours is healthier since it is relative and does not say that theirs in unhealthy.
The problem arises when you attribute negative, hazardous or dangerous attributes to your competitor's product.
For example, if you are going to claim in an ad that your competitor's product causes blindness or cancer or impotence or obesity or hypertension, you must have some (scientific) proof of that. If you have proof, then you can fall on the defence of Justification (a fancy word for truth) if they sue you for defamation.
But defamation is not the only complaint your competitor could have against you.
There is an area of law called economic torts. One such is Tortious (Wrongful) Interference with Business Relationships, where Party A's conduct or statement prevents Party B from successfully building or retaining business relationships. An example would be where your false or unsubstantiated statement about a product causing cancer causes the producer to lose their present and prospective clientele.
Just as with defamation, a person who has suffered an economic tort by your action can sue you for damages.
In sum, beyond making damaging comments about your competitor in your ad, there is very little they can do. If your statement is merely comparative, it may well be seen in law as a mere 'puff', without more.

(I apologise for not coming back earlier. I took my eyes off this space because I had not had a question in a while.)

Studying Law with an American Degree

2011-02-26T05:55:00.000-08:00

Dear Reader,

As far as I know, there is no special track for American B.A. degree holders who want to study law in Ghana. In fact, there is no such special track even for Ghanaian B.A. degree holders who want to study law. They all have to do the LLB in Ghana before they can go to the Ghana School of Law.

I do not know if you are really asking about about American law degree holders. I do not know the answer to that, but I will find out and put out an additional note for you.

Claiming Back Your House

2011-02-19T02:19:00.000-08:00

Dear Reader,

Our Rent Act is very socialist (you see, it was enacted in the 1960s). Normally, when a lease or tenancy ends, and the tenant chooses to remain in the premises, they enjoy an 'Irremovable Status' unless the law says they should go.
Therefore, you will have to get a court order to remove a tenant who has overstayed the agreed period.
You have not stated how long your lease was, but it is not a hard-and-fast rule that you should give a tenant 3 months' notice to quit. Sometimes, it is less. Sometimes, it is even 6 months.
If your tenant refuses to quit, you may want to consider suing them in a magistrate court.
Having said all that, there is a concept known as 'Self-Help', where a property owner 'helps' themselves by throwing out the property of the tenant and locking up the premises. This has been upheld by the courts in some cases (although reluctantly).
What you must know about 'Self-Help' is that you must not do it, if it will be resisted physically by the tenant, which might cause a brawl or an altercation.That would be a criminal offence.
Another thing is you must ensure that the you have not accepted any rent from the tenant for a further period since the tenancy ended, or you would have waived your right to let them leave. Throwing them out whether by force or by putting inconveniences in their way, while they are still 'legally' in your premises, amounts to another offence - inducement to quit.
The best and most risk-free advice I can give you is to sue them in a magistrate's court.

Good luck.

Handing Over Your Licence

2011-02-15T23:17:00.000-08:00

Dear Reader,

Pardon me for taking so long to get back on this one.

The Road Traffic Act provides that a person driving on a road has to produce their licence for examination if a police officer asks them to.
The law does not say exactly what it means to produce the licence, and it could mean a certain number of things. I believe the best view to take of this is, a person cannot claim to have produced their licence if they merely hold it up from a distance or provide a photocopy.
The law also gives up to 24 hours to produce the licence.
If a person suspects that a police officer will take the licence in order to extort money, well, they can produce it within 24 hours at the officer's police station. I believe you can insist politely that you would like to produce your licence at a police station (if it is convenient for you).
Please note that refusal or failure to produce your licence can be punished by conviction and a fine of up to GHS 600 or 1 year's imprisonment or both the fine and the prison term.

A 6 Year-Old Alleged Sexual Molester

2011-01-26T22:59:00.000-08:00

Dear Reader,

This is a not-so-straightforward one. Sexual molestation or assault by violating the victim’s body in a manner not amounting to rape or defilement or buggery is a criminal offence under the fancy name Indecent Assault.

The law deems anybody below the age of 12 as incapable of committing any crime including Indecent Assault. That is why the minimum age for putting child offenders in an institution is 12.

However, there are rules of punishment in society for all ages.

First, the school (by its rules) should be able to punish a 6 year-old who is described as a repeat or habitual offender by calling in his parents and/or suspending and/or expelling him. What influences is the boy being subjected to at home? What is he watching around him – in real life or on TV?

If the school will not take action, it can be sued because it is responsible for every child and their behaviour towards other children during school hours.

Even if the child is expelled, there must be something showing that the child has this problem; otherwise it will merely be repeated in another school.

Such a child needs help, but while he is getting help, other children must be protected from him.

Commuting Leave to Cash

2011-01-20T07:28:00.000-08:00

Dear Reader,

1. To answer the question "Can you do it?", simply, No!

2. The Labour Act says an agreement to forgo leave is void.

3. The legal provision might appear indirect, but taking cash surely means forgoing leave, no?

4. If a person is leaving the employment, then outstanding leave can be commuted and added to entitlements.

Official Website of the Ghana School of Law

2011-01-14T10:17:00.000-08:00

Dear Reader,

I doubt that it is updated regularly. But please click here.

UG Law v KNUST Law

2011-01-10T04:47:00.000-08:00

The Faculty of Law at the UG has long been established as a very good law school. It has the best law library in the country (and that includes all libraries, including the Supreme Court library) and beyond. Most indicators would probably judge this to be the best faculty in Ghana.

I know a couple of lecturers from the Faculty of Law at KNUST. I know many lawyers and law students who have passed through this young faculty. Many of them are exceedingly fine legal brains.

I am tempted to think that the students from KNUST just about win it, judging from perceived performance at the Ghana School of Law. These are however only my personal views. Further, I think the KNUST students win by reason of youthfulness, and nothing else.

Application Period for the Faculty of Law at UG, Legon

2011-01-07T03:47:00.000-08:00

Dear Reader,

The Faculty of Law, UG, usually puts out application forms for sale from the end of January through February. In lucky years, it is even extended.

If I hear about the actual date for this year, I will let you know in this space.

Good luck.

The Paths to Law after High School

2011-01-04T09:48:00.000-08:00

Dear Reader,

There are different paths to law, if you are studying in Ghana. We will refer to the law degree as the LLB.

A) Doing a law degree as an undergraduate.

B) Doing a non-law degree as an undergraduate, and then doing a second degree in law. (This second degree is not a post-graduate degree.

Both A and B will lead you to the Ghana School of Law.

Let us break it down now.

A – Undergraduate Law

1. The institutions that offer this are KNUST, GIMPA and Zenith College.

2. At KNUST, it is a 4-year degree. I believe it is also 4 years at GIMPA. I believe it is 2 years at Zenith College. Zenith is probably the most flexible because you can choose a module which works for you (2, 3 or 4 years to complete).

3. Zenith College is a peculiar case. You can do their LLB with your High School qualification or with a degree. With your High School qualification, you will have to be assessed by the University of London for your suitability. Further, you can study the LLB as either a diploma (for 4 years) or a degree (2, 3 or 4 years).

4. KNUST offers a hybrid programme, really. There are some students studying law as a second degree. They complete the LLB in 3 years.

B – Non-Law Degree First

1. If you go to the University of Ghana, you will have to do some other degree first. It could be the humanities or the sciences or anything between.

2. If you get a good grade, you may write exams for entry into the Faculty of Law.

3. If you do well enough in the exams, you may be called for an interview.

4. Those who impress in the interview get admitted.

Post LLB

Whichever path you take, after you obtain the LLB, you apply to the 2-year certificate programme of the Ghana School of Law. It is becoming increasingly competitive as it now has many feeder institutions.

Timeframe

Depending on what path you choose, you could become a lawyer in 4, 5, 6, 8 or 9 years (considering national service) after you leave High School

Joining the Police

2010-12-22T10:57:00.000-08:00

Dear Reader,

The question on the eligibility for police recruitment escaped my attention. I apologise for it. Please see some information below.

Qualifications and Competencies

• Must be a Ghanaian citizen by birth with no criminal record.
• Hold SSSCE/WASSCE Certificate with four (4) credits including English Language and at least a pass in Mathematics.
• A minimum age of 18 and not more than 25 years.
• Physically fit by Police standards
• Of a minimum height of 1.73 metres (5ft 8in) for Males and 1.63 metres (5ft 4in) for Females

How to Apply

Interested candidates should pick up application forms from the various Regional and District EMS Offices scattered across the country, complete them and send through the EMS system to the address below. An application fee of GHC20.00 is to be paid at the EMS Offices. All applicants who were previously shortlisted are requested to re-apply, produce receipts of previous payments and pay the difference of GHC9.00.

The Director-General/HRD
Ghana Police Service
Police Headquarters
P O Box GP 116
Accra

For more information, see the Ghana Police Service website here.

Pupillage, Specialization and Developing Areas of the Law in Ghana

2010-12-21T22:53:00.000-08:00

1. While the law on the legal profession has provisions on pupillage, there are no fine detail on how it must be done. It is one's choice whether to do pupillage in a specializing law firm or an all-practice law firm - of course, one must be good enough to be recruited first by the law firm. There are not a whole of of firms in Ghana specializing. It even appears to me that - in the more developed countries - there is a move-back from specialization to all-practice 'boutique' firms again. You have to decide where you want to do your pupillage for yourself - bearing in mind what you want to practice in. Personally, I would more likely advise an all-practice.

2. There is no reason why you cannot specialize in "crime, contracts, employment, corporate law and wills & probate." But you may make the practice more 'rounded' by putting employment under corporate - because that is how it works usually - and doing family law - instead of just W & P. You need to think about whether you want to do criminal law together with the rest - which are all civil law. There are many factors of workload. One may be how many areas of practice you take up. I suspect however that the bigger factor is simply the quality of your clientele, complexity of matters you are dealing with and numbers of matters too.

3. Pupillage runs for 6 months - sometime after you are called to the bar in Ghana. It does not have to be immediate but - without it - there is a solicitor's certificate you need - but cannot obtain - to practise. You can only lawfully do pupillage under a lawyer who has practised the law for at least 7 years. Most people like to do their pupillage immediately after the call to the bar.

4. It is difficult to call any area of the law developing as such in this emerging economy. Let me rather tell you about industries which are promising - and they will need legal advice! Telecommunications is hot - I think. The financial services are hot too. There are many Small and Medium-Scase Enterprises in need of day-to-day legal guidance in all manner of matters. I have to say Oil-and-Gas too, although I admit I have a personal skepticism about whether it will really become 'hot'. I think 4 out of every 5 post-graduate degrees obtained by Ghanaian lawyers now will be in Oil-and-Gas. M&As are still not big in Ghana. Competition law is nascent at best. On another level - dispute resolution - Arbitration is fast gaining on Litigation as the preferred means of resolving disputes, especially by medium and big corporations.

Contacting the Ghana School of Law

2010-12-07T10:54:00.003-08:00

For those wishing to contact the Ghana School Law, you can reach the office of the Registar on the numbers below:

+233 302 66 32 46

+233 302 66 77 06

to ask all your questions.

I am sorry it took this long to post, but I have been ill and also had a minor domestic accident.

The Average Starting Salary for Lawyers in Ghana?

2010-11-05T04:53:00.000-07:00

Um, I do not consider this as within the scope of Makola law. Of course, there is no secrecy about it, and if you email me at david.asiedu@gmail.com, I can give you my opinion on that. But I would like to limit this blog to strictly the scope provided above. Thank you.

Setting Up a Consultancy in Ghana

2010-11-05T04:49:00.000-07:00

Unfortunately, this question goes beyond the 'House Rules' set out above, and are beyond the scope of this blog. Consider engaging a Ghana-qualified lawyer to provide the service "as a legal service".

Qualifying to Study Law in Ghana

2010-10-29T11:32:00.000-07:00

I can only, for now, speak with some authority about the University of Ghana and the KNUST.

At the University of Ghana, law is a 2-year postgraduate course. It does not really matter in which subjects the degree is. But one needs to get a good GPA. I believe you generally must have a 2:1 or 1. Not sure about a 2:2 but I will check on that.

The 3-stage process involves an application form, a written exam and interview (for short-listed people).

At the KNUST, law is a course for both undergrads (4 years) and postgrads (3 years). For postgrads, I reckon the qualification is pretty much similar to the University of Ghana, though I do not believe they have an interview system. For undergrads, a good qualification from your SSSCE is what you require.

I will try and find out about Zenith College and provide information on that.

Multiple Signatures

2010-10-19T06:32:00.000-07:00

Primarily a person's signature is their name or other identifier written in their own hand. Of course, many prefer to write out some or all of their names in some obscure fashion to make it difficult to duplicate. As a result, a person could have as many signatures as they are able to change their handwriting.

A signature (from Latin signare, "to sign") is a handwritten (and sometimes stylized) depiction of someone's name, nickname or even a simple "X" that a person writes on documents as a proof of identity and intent (Credit: Wikipedia).

Whether a person has one distinct signature or several of them is not as important as the intent with which a person uses different signatures. If a person is under suspicion of trying to hide their identity or of committing fraud, then the fact that they have different signatures may be seen as circumstantial evidence of their intent to hide their identity or to commit a crime.

Many people do have at least 2 signatures - one for their daily endeavours and one for some other purpose (e.g. banking). I have personally been witness a bank asking a customer to simplify his signature as it was difficult for them to ascertain its genuineness if it was too complex!

Having more than one signature is not of itself any less legal than having different names. The critical matter is the reason why a person has more than one signature and the uses to which the signatures are put. If a person has more than one signature, it is good that they have a group or groups of people who know and recognise each signature as belonging to that person.

Fraud (Defrauding by False Pretences)

2010-09-27T11:13:00.001-07:00

There are many offences involving dishonesty under Ghanaian criminal law. In some cases, the elements (or ingredients) of the offence are the same. Some of these offences are Stealing, Dishonestly Receiving, Defrauding by False Pretences, Falsification of Accounts, Forgery and Uttering a Forged Document.

A person commits the offence of Stealing where they take your property without your permission with the intention of keeping it. In the facts, you give, you willingly gave up GHS 46,800. Therefore, there was no stealing really.

On the other hand, the offence of Defrauding by False Pretences (or what is normally called “Fraud”) occurs where a person makes a statement to you that if you part with your property to them, they would in turn do something for you, when they have no intention of keeping their promise or they knew their statement was false.

The facts you relate appear better suited for Defrauding by False Pretences than Stealing. You may report the matter to a police station near where the money was taken from you, where the gold was supposed to be given to you or near where the person who took your money took it from you. The police, in their discretion, would decide whether an offence has been committed, and what offence it is. Good luck.

Before You Become a Director of a Company

2010-09-23T11:53:00.001-07:00

Before you become a director (of any kind) of a company, you must know that there are certain risks you would be assuming. The risks are many and beyond the purpose of this blog, but I have summarised and listed many important ones below.

1. A director risks liability for a company’s criminal acts. A company may be tried and convicted for criminal acts such as stealing, fraud, corruption, forgery, and possibly even murder. Because a company is not human and can only be fined but not jailed, officers of the company such as directors may be made to bite that bullet. This liability stretches to the offence of “contempt of court”.

2. Directors stand in a position of utmost trust with the company. They are ‘sworn’ to act always in the best interest of the company. Where a director acts adversely to this duty, they may be sued by the company or, in certain circumstances, by the shareholders of the company.

3. Directors of a company may find themselves unable to work in certain institutions if the company goes insolvent, such as banks. This would limit employment opportunities.

4. Directors of companies have to declare their interests in any contract or transaction or other companies with which the company of which they are directors is involved. Failure to do this would attract punitive measures.

5. There are several requirements imposed on companies by Ghanaian company law. An example is the requirements that companies should file certain returns and statements at the Companies Registry within 28 days of certain acts occurring. Failure to do this attracts a fine for the company and for officers of the company, including directors.

There are others, but these serve the purpose of this blog.

Registering a Non-Profit Organisation in Ghana

2010-09-22T03:46:00.000-07:00

You are probably thinking about incorporating a kind of company known as a company limited by guarantee. What it means is that there are certain persons who guarantee that if the company is dissolved, they will pay any liabilities that the company owes to third parties.

Part One - The Registrar-General's Department

Step One

You need to purchase and fill 'NGO registration forms' (form 3, 4 and a copy of Table B - regulations of a company limited by guarantee) as required by the companies law of Ghana, from the Registrar General's Department.

The incorporation details needed to fill the forms would include:

• The name of the NGO
• Objects
• the first members of the Executive Council or Board(from 2 to 20)
• Particulars of Directors and Secretary (including names, nationality, residential address & business occupation)
• Name and address of Auditors
• Address of registered office, principal place of business

Step Two

You then submit the filled forms to the Registrar Generals Department together with the registration fees of about GH155.00 and other regulatory charges.

Step Three

The registry will then issue you with a Certificate of Incorporation and a Certificate to Commence Business in about two weeks, provided all the information you provided on your forms were correct.

Part Two - The Department of Social Welfare

Step One

Apply for NGO status at the Department of Social Welfare which is the regulator of NGOs in Ghana, by submitting the following to the national office of the department in Accra:

• Certificates of incorporation and Commencement of business
• Application letter on the organisation's official letterhead
• The organisation's Constitution
• An NGO Profile form
• A Social investigation report (not sure what this is :-)
• A recommended letter from the district, municipal or metropolitan assembly responsible for the area where your NGO is to be located
• Brochure or publication about your organisation
• 3 copies of an endorsement letter from a regional office of the Department of social welfare

Step Two

Fees apply here and the components of the fee can be obtained from the department.

Step Three

It takes about a month to secure the NGO status through a "Certificate of Recognition".

You can also solicit the services of a professional company secretarial firm or a law firm to assist in the registration of your NGO at a fee.

The Loans of a Ghost

2010-09-17T13:54:00.000-07:00

When a person dies in law, they have successors (or personal representatives) who manage their estate. The person who is dead may have chosen their own successors by naming them in their will. On the other hand, if the dead person failed to name their successors, the law has a formula (ok that sounds deep) a list of possible persons who formally ask a court to recognise them as successors.

The property of a person who has died is known as their "Estate". In a loose sense, an estate includes the successors of the dead person.

If a person takes a loan from a bank, and dies before they can repay, the Bank may take steps to recover the money from the successors/personal representatives/estate of the dead person.

Qualifying as a State Prosecutor

2010-09-17T13:51:00.001-07:00

State Prosecutors start at a basic level like every job, and rise up through different levels. They are properly called "State Attorneys"

You become a State Attorney by studying law and being called to the bar in Ghana. Therefore, you have to be a lawyer to be a State Prosecutor.

To my knowledge the curriculum at the Ghana School of Law has not changed much in many many year, although a few courses have been added to the lot, such as Alternative Dispute Resolution and Banking.

Suing the Mayor? No but Yes

2010-08-05T08:48:00.000-07:00

Ghana is divided into districts for easy governance. The political authorities in the districts are the district, municipal and metropolitan assemblies. They are collectively known as local government.

The mayor of Accra is only the executive head of the Accra Metropolitan Assembly (AMA). He cannot be sued for his official acts or omissions, but the AMA can!

Under the Local Government Act (the law) in Ghana, all local authorities (including the AMA) have several functions in their areas, including responsibility for:

• Exercising political and administrative authority;
• The overall development of their area;
• Initiating programmes for the development of basic infrastructure;
• The development of human settlements and the environment.

From the above, the construction of drainage in a place like Alajo is the responsibility of the AMA, whether you see it as basic infrastructure or development of a human settlement. It is the AMA’s public duty!

Therefore, if the AMA neglects to perform its duty and floods occur and destroy property, the AMA can be held responsible.

The law provides that the AMA can be sued for an alleged neglect or default of a public duty. However (to explain in simply) the suit must be commenced within 12 months after the occurrence of the act of neglect. If the act is one a one-off act but a continuing act, then you may sue at any time while the act continues, but if the AMA puts a stop to its neglect, then you have 12 months within which to sue them.

Generally, a person in Ghana may sue any other person, including the government (in this case AMA) for compensation as a result of injury or loss suffered by reason of their neglect or breach of a duty.

However, the courts are cautious in awarding compensation against public institutions for fear that it may open the floodgates for practically everybody to sue them.

To answer your question simply, a person cannot sue the mayor but they can sue the AMA. But, to be candid, one’s chances of being awarded any significant compensation are slim.

I hope this answers your question.

No Paternity Leave in Ghana

2010-07-30T11:00:00.001-07:00

Let’s start with a definition so that we know we are on the same page.

Parental Leave is an employee benefit that provides for paid or unpaid time off work to care for a child or make arrangements for the child’s welfare. Parental Leave could refer to Maternity, Paternity or Adoption Leave.

The labour laws of Ghana specifically recognise Maternity Leave, but are silent on Paternity Leave. In law, the very fact that Maternity Leave is mentioned specifically means Paternity Leave is excluded specifically.

In practice, some companies give paternity leave, but this is a private arrangement for their employees.

When a family tragedy compels a man to take time off work to go and care for his child, it would more likely fall under “Compassionate Leave” e.g. where his wife has died.

There may be grounds for saying that to the extent that the labours laws provide for maternity leave and exclude paternity leave in all cases, they are unconstitutional. I can understand why in the unfortunate case of a woman losing her life in childbirth and the child surviving, the man should be able to get paternity leave.

A point of interest: it appears that maternity leave is available to only before, during and after childbirth and not generally for women who want to take time off to look after their children.

Why I Stopped Posting?

2010-07-30T10:41:00.001-07:00

Well, I stopped posting because this blog is supposed to be reader-led. So the reader asks an everyday-law question, and I try to answer it as quickly as possible. But the rules in Ghana prevent me from advertising this blog, so I have to wait until somebody stumbles upon it. And the questions did not really come. If I get questions, I will answer them.

Additional Note on Children's Rights

2009-09-02T03:14:00.000-07:00

The Best Interest Principle

Ghanaian law stipulates that in all matters involving the custody, upbringing, education, care, health, discipline etc, of the child, the best interest of the child is paramount. It is certainly not in the best interest of a child to cut off her education just because she got pregnant.

Do School Kids have Rights to Privacy, Respect, etc?

2009-09-01T09:53:00.001-07:00

I understand you to say that your daughter got pregnant in school. She was subjected to a ‘strip-search’ in front of teachers to determine whether she was pregnant. She was verbally abused by the school authorities. Ultimately, she was expelled from the school.

I shall presume that your daughter was, at the time, below the age of 18. By Ghanaian law, she was a child.

Ghanaian law protects the right of a child to education. It is a fundamental human right. It cannot be taken away from the child, no matter what. Even pregnancy does not derogate from the right. Therefore, the school authorities were wrong to expel your daughter just because she was pregnant. For practical reasons, they may have recommended deferring school for a year for maternity reasons, or even for reasons of not distracting the other children. But dismissal is strong medicine.

A child has the right not to be subjected to any form of cruel, inhumane or degrading treatment. Verbally abusing the child and subjecting them to a public ‘strip-search’ is certainly degrading and inhumane. The school authorities and teachers had absolutely no right to do that.

I have not made the time to research into the subsidiary legislation of the Ghana Education Service, but my answer to you is based on the supreme law – the Constitution, and the Children’s Act. We have condoned the discriminatory act of throwing pregnant girls out of school, while the boys they got pregnant with (if they are boys in school) are allowed to go on and finish their education. It is not constitutional.

You (as guardian of the poor girl) have a cause of action against the School at the Human Rights Division of the High Court.

Taking a Loan in Ghana

2009-08-26T11:11:00.001-07:00

A bank loan is usually granted in the form of a contract between the bank and the borrower. A borrower must know the purpose for the loan. It may be agriculture, a mortgage (building), or business. The bank would like to know that your use of the loan money will yield results. Having a purpose also determines which bank you will approach e.g. HFC Bank if you want to acquire a house (mortgage), ADB if you want to engage in agriculture, etc.

There are also “Non-Bank Financial Institutions” like NDK Financial Services and Pro-Credit which can give substantial loans without the traditional bureaucracy of banks.

A lender would (after looking at the purpose of the borrower) typically investigate the creditworthiness of the borrower. Creditworthiness measures the likelihood (from all the circumstances) of the borrower repaying the loan when interest and the principal fall due.

A lender may also include a “Security” section in the contract. The security is the arrangement which allows the lender to take over specified property of a defaulting borrower, and possibly selling such property to recover the amount owed it (the lender) by the borrower.

The range of types of security is quite wide, but it includes:

Mortgage (where the borrower puts up their house as security for the loan)
Hypothecation of Stock (where the borrower takes a loan to trade and puts up the trading stock as security)
Cash Collateral (where the borrower keeps an account with the lender, and is required to keep a minimum amount in it at every point in time)
Guarantee (where another person puts up their property or gives a promise to pay money as security for the loan)
Receivables (where the borrower’s debtors in business are required to pay the debts into a specified account kept by the borrower with the lending bank).

A borrower must take their time to study the contract given them by the bank (and seek independent legal and/or financial advice) before signing the contract. There are other considerations which must be looked at such as administrative fees payable by the borrower, interest, events of default, default interest, provisions for early repayment, etc.

Making a Will in Ghana

2009-08-19T09:44:00.001-07:00

Anybody who is at least 18 years old can make a will. A will disposes of a person’s present property, as well as the property the person may acquire between the time they make their will, and the time they die. This means you do not have to make a will every time you acquire new property.

The person who makes the will is the “testator”. The persons who benefit from “gifts” under the will are “beneficiaries”. A testator must appoint a person or persons in their will who will ensure that their instructions in the will are carried out. These appointees are “executors”. The law does not set a minimum number of executors, but it is wise (and standard practice) to appoint at least 2. An executor must be at least 21 years old. It is wise to appoint as executors people who are significantly younger than the testator.

A will, once made, can be cancelled or amended either entirely, or in part. This can be done by a totally new will or a supplementary document called a “codicil”.

A will must be signed (called execution) by the testator. Execution must take place in the presence of at least 3 people – the testator and at least 2 witnesses. After the testator signs his signature (he thumbprint too) before the witnesses, the witnesses must sign their signatures too (called attesting) in the presence of each other. Note that when a testator is executing by thumbprint, there must be words to the effect that he understood the contents of the will when the testator executed the will. Note that a beneficiary under the will must not also be a witness to its execution.

The safest place to keep a will is in the registry of the High Court. Upon presentation at the High Court, a will is sealed before it goes into storage for safekeeping.

Note that where a testator disinherits their dependants in a will, the High Court has the power to make reasonable provision for such dependants.

Above all, note that, although a person can make their will without engaging a lawyer, they are better off getting a lawyer to draft it the will involves complex instructions, land and houses and “joint gifts”.

Maternity Leave

2009-08-10T01:41:00.000-07:00

The labour laws of Ghana provide for 12 weeks of maternity leave, in addition to a person's annual leave. There is no provision for when maternity leave starts and ends. In practice, most women wait for as long as possible in order that they have the bulk of the leave outstanding when they have the child. For example, many women wait until the second week or the week before birth before they go on maternity leave. This will leave about 10 or 11 weeks of maternity leave, plus the 4 weeks of annual leave, which is good for the sake of breastfeeding. In addition to the paid maternity and annual leave, discussed already, there is a further 2 weeks of maternity leave, if a woman has a multiple birth.

Acquiring a House in Ghana

2009-07-22T13:25:00.000-07:00

Dear Anon,

You write that you would like to buy a house in Ghana. Chances are you are thinking about an already-existing neighbourhood. But, I will go ahead and give some advice on buying bare land to build on.

1. I cannot warn you enough to be careful to make sure that you buy property and not litigation.

2. Be careful of landowners in and around the capital. They may not be the owners of the land they purport to sell to you, no matter how convincing they sound, and how genuine their title documents appear.

3. Sign a contract for the sale of the land, conduct investigations and searches and the Land Title Registry or Lands Commission to know what transactions affect the land you want to buy. You may be required to pay a deposit of the purchase price on signing the contract.

4. Try to eliminate agents and middlemen as much as possible, unless their role is restricted to only identifying and introducing you to sellers.

5. It is generally less risky to buy a completed house than a bare piece of land;

6. It is generally less risky to buy property in a place exclusively developed by a real estate company.

7. Be careful in choosing the house you want to buy. Some building contractors and real estate companies evidently did their training on chicken coops.

8. Never pay money without getting a receipt for it.

9. When you are certain of the genuineness of the seller of the property, you can sign a conveyance and pay off the remainder of the money.

10. Take immediate steps to stamp and register your title documents.

11. Always seek the advice of a lawyer with a solid reputation.