12 Jun Adu-Gyamfi V.The Attorney-General Suit No. J1/18/2022 (Judgment Delivered On 8th November 2023)
“The barring of the person just because she has been charged with those criminal offences means that she is being punished and denied her right to participate in a company as a director on account of being charged with the criminal offence even though the Constitution says that she is innocent of the criminal offence.”
The Plaintiff invoked the Supreme Court’s original jurisdiction seeking for a declaration that the provisions in the Companies Act, 2019 (Act 992) which disqualified persons who within the preceding five years had been charged with an offence involving fraud or dishonesty or relating to the promotion, incorporation or management of a company, from becoming directors are contrary to the presumption of innocence and therefore unconstitutional.
Among the issues for the Supreme Court’s determination was whether Sections 13(2)(h)(i), 13(2)(h)(ii), 172(2)(a)(i), 17(2)(a)(ii), 177(1)(c) and 177(1)(e) of the Companies Act, 2019 (Act 992) was inconsistent with the Articles 19(1), 19(2)(c) and 15(3) of the 1992 Constitution”?
The Plaintiff contended that the provisions above violated the constitutional principle of presumption of innocence stated in Articles 15(3) and 19 of the 1992 Constitution as it prohibited or restrained a person from becoming a director of a company on the ground that that person was previously charged with an offence or under investigation by a criminal investigating body or by the Registrar or the equivalent body in a foreign jurisdiction.
The Plaintiff further argued that the presumption of innocence meant that any person accused or even charged with a crime was to be considered and treated as innocent until pronounced guilty of the offence by a court of law. He stated that Sections 13(2)(h)(i) and (ii) of Act 992 required that proposed directors deliver a statutory declaration at the time of incorporation of the company that within the preceding five years: –
- They were not charged with an offence relating to the promotion, incorporation and management of a company; or
- An offence involving fraud or dishonesty.
The Plaintiff also argued that Section 172(2)(a)(i) and (ii) of the Act automatically disqualified any person charged with the offence above within the preceding five years from holding office as directors. He contended that Section 177(1)(c) and (e) of Act 992 authorized the court to restrain a person from being a director on the ground that he was the subject of an ongoing investigation.
The plaintiff therefore claimed that the disqualification of such persons from being directors due to these charges or investigations without them having been convicted by a court was essentially a penalty which presumed their guilt and was therefore in contravention of the Constitution, especially on a person’s presumption of innocence.
The Attorney-General made the arguments that the restrictions were necessary to protect investors and ordinary Ghanaians from potential risks as seen in the banking and financial sector crisis of 2017-2018. As such a purposive approach to interpreting those provisions with consideration of the purpose for which such provisions were included would prove that they did not operate to presume the guilt of a person who has been charged with those offences but rather seek to lay down safeguards to protect the interests of investors, shareholders and ordinary Ghanaians.
The Supreme Court ruled that Sections 13(2)(h)(i); 13(2)(h)(ii) and; 172(2)(a)(i) and (ii) of the Companies Act were inconsistent with the Constitution as they automatically disqualified a person charged with an offence from holding office as a director owing to a presumed guilt of the offence thus violating the principle of presumption of innocence.
The Supreme Court in examining Section 13 of the Act was of the opinion that where a person was so charged, that person could not provide the statutory declaration meaning his application would be refused, hence leading to inevitable disqualification. The apex Court stated that the disqualification of a person because he has been charged with a criminal offence means that he is being punished and denied her right to participate in a company as a director on account of being charged with the criminal offence even though the Constitution says that he is innocent of the criminal offence.
However, the Supreme Court held that Section 177(c) and (e) are not unconstitutional as they merely grant the courts the discretion to disqualify a person charged with an offence. The apex Court reasoned that to the extent that the determination of disqualification under Section 177 of Act 992 is not automatic but is to be made by a court of law, the provision does not violate the presumption of innocence. A violation would only be manifest if the court in exercising that discretionary power disqualified the person based solely on the criminal charge levelled against him or the investigation to which he was subject.
The Supreme Court further held that although the policy initiative to protect Ghanaians was sound, it must be applied with consideration of the limits imposed by the Constitution which was not the case with the provisions of Act 992 in question.
Accordingly, the court struck out the words “charged with or” which appeared in the impugned sections holding that they were unconstitutional and therefore null and void.
Insight: Any restraint on a person charged with an offence without conviction by a court of competent jurisdiction amounts to a violation of the 1992 Constitution, particularly presumption of the person’s innocence until proven guilty.
AUTHOR:
Yaw Kesse Jr
2025 Intern, BPA