AMICI

 Hi there!

There is a new Ami on the blog.

amicusfiles.blogspot.com

As you did with Juris, I would encourage you to do same for Amici as we get those fresh perspectives out there. 

Come lets start another exciting journey together!

Just scribbling; ICT and E-Commerce

ICT AND E-COMMERCE

KEY PLAYERS

Suppliers

Distributors
End users
Developers

 In Ghana, the Electronics Communication Act 775 and the Electronics Transactions Act usually govern internet and ICT and Telecommunications. However with issues concerning purchase of software products and any other ICT, internet and Telecommunications Act products, we have the Sale of Goods Act governing it.
Sale of Goods Act, 1962 (Act 137) general regulates buying and selling of products. Section 55 provides for damages for breach of Condition or Warranty. Thus where software is defective and is in fundamental breach of an obligation or of a condition or warranty, the purchaser, who usually happens to be the End user may sue for breach of contract.
Section 1 of the Sale of Goods Act, 1962 (Act 137) provides for a Contract of Sale. A Contract of Sale of Goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price, consisting wholly or partly of money.
Section 8 of Act 137 provides the fundamental obligation of the seller to include delivery and delivery according to description. Thus if a seller  which may or may not be the software developer provides a software that is defective then he or she is in breach of Section 8 of Act 137
Another critical thing to look at with regards to ICT, internet and Telecommunication law in Ghana might have to do with Copyright. Section 1(h) of our Copyright Act protects Computer software and programmes as a work eligible for copyright once it is created by or Citizen or created by a person ordinarily resident in the republic.
Section 9(9) of the Copyright Act provides for an assignment, a licence or a testamentary disposition to be made or granted in respect of an existing work or future work.
A software developer who has the copyright to his software infringed upon would
A person whose copyright is infringed may:
Petition the Minister or Copyright Administrator for the settlement of such dispute by Arbitration.
Institute criminal proceedings against offender who may on conviction be liable to pay a fine not more than one thousand penalty units and not less than five hundred penalty units or a term of imprisonment of not more than three years or both; and in the case of continuing offence to a further fine of not less than twenty-five penalty units and not more than one hundred penalty units for each day during which the offence continues.
Institute proceedings in the high court for an injunction to stop the continuing of infringement. Civil proceedings can also be instituted where there is imminent danger that the work would be infringed to prevent the infringement. Both civil and criminal proceedings can be instituted simultaneously


VEHICLE
Software license
End user Agreement
Terms of Use
Service Level Agreement
Data protection

TELECOMMUNICATION LAW
As at 2010, there were about two fixed line, six mobile companies, 13 satellite providers that had the requisite authority to operate in . Ghana.
Taxes of about 38 per cent imposed on mobile phones has increased the prices of mobile phones.

Value Added Services
Value Added Service (VAS) providers are service providers who offer services which combine applications provided to users with telecommunications, but does not include public electronic communications service. It should be noted that Mobile Network Operators (MNOs), per their licences, also provided these VAS.

Value added services include but not limited to the following; videotext; teletext; tele-action; telecom; tele-alarm; data storage retransmission; teleprocessing and data processing; electronic mail service; voice messaging; text messaging; and any other service classified as value added communications services by the Authority.
A license shall not be required for the establishment or operation of value added services but a provider and an operator of an electronic communications service or network who intends to provide value added services using radio frequency shall apply to the Authority for the right to use the radio frequency for that purpose. Regardless of the fact that a licence is not required for the provision of value added service over the public communications system, a person who intends to provide value added service to the public shall before the commencement of the service apply for registration.

DATA PROTECTION COMMISSION
A Person who processes personal information (processor) and Data Controller must provide the Data Protection Commission with information about (a) who they are; (b) the type(s) of personal data it holds (c) the nature of processing of personal information and how they ensure the protection of such personal information collected or processed (d) their contact person for data protection issues.
Information Technology Companies must therefore register with the Data Protection commission as failure to do so under Section 56 of Act 843 constitutes an offence and makes the person liable on summary conviction to a fine of not more than two hundred and fifty penalty units or a term of imprisonment of not more than two years or to both.

Something chanced on.

Once a Lawyer was travelling by train from Liverpool to Manchester.

When the train started, he realized he was traveling alone in the business class. A few minutes later, a beautiful lady came and sat in the opposite seat!

The lady kept smiling at him and eventually she sat next to him .... *the lawyer* kept bubbling with Joy.

She then leaned towards him and whispered in his ear ... _"Hand over all your cash, cards and mobile phone to me, else I will shout loudly and tell everybody that you are harassing and misbehaving with me"_ . The Lawyer stared blankly at her!!

He took out a paper and a pen from his bag and wrote " _I am sorry, I can not hear or speak ... Please write on this paper whatever you want to say_"

The lady wrote everything that she had said earlier and gave it back to him!

The Lawyer took her note, kept it nicely in his pocket ... got up and told her in clear tones ...
" _Now SHOUT & SCREAM!!!_ "

Moral of the story:

DOCUMENTATION IS VERY IMPORTANT😜

_If you don't know how to get your dealings documented, you better learn this in 2018. Once your transaction is documented the Law of evidence vindicates you._

Quote for the week: There is an Einstein in all of us; just let it out.

🎂🍸cakes and cheers to a great year of mor opportunities to all of us

Ghana's Election wahala

Ghana's Election last year was what I would call a scene from  a favourite Telenovella or soap series. Many 'buhaha' came out. First was the wahala on the creation of 45 new constituencies, then there was the Ayariga cough and 'yes we cant' or is it 'yes we wont'? Anyway this was followed by the flag bearer of PPP, Papa Kwesi Nduom  submitting his tax document in a News conference in Accra 48 hours to election.

Now the new episode of this soap opera is the contesting of the elections by the opposition NPP in the Supreme Court of Ghana. This has resulted in mixed feelings from the Ghanaian populations. My thoughts are what are the State Security doing to ensure that peace is maintained in the country irrespective of the decision of the court. What are state bodies like the NCCE doing to educate the public about what the court process means for our democracy and the responsibility of Ghanaians to restrain themselves from doing things that would threaten the peace and stability of our country. Recently the was the rally by a group made certain statements though in itself probably innocent alludes to certain things especially certain happenings in our history which was uncalled for. 

I believe it is well within the right of the NPP to contest the legitimacy of the elections (eg. not the president) in court. I also believe we must all remain calm, sit down, cross our legs and fingers  sip some wine  or gulp it whichever way and wait for the outcome of the court's decision.

NEW DISTRICTS TO BE CREATED IN GHANA

Recently at a news conference, Mr. Samuel Ofosu Ampofo, the country's minister for local Government and Rural Development anounced that the government was going to place before Parliament for consideration, the appropriate legislative instrument for new districts yet to be created.

Overall, the districts to be created is a total of 42. it would be created accross the country. The government is said to have allocated GHc 40million for the new districts. Also 5 new districts have already been created.
Mr Ampofo during a durbar of chiefs of the Greater Accra Region  in Dodowa is siaid to have stated that the creation is to be done after consultations with stakeholder.

The aim of the creation of the new districts is to ensure the effective management and development in the nation.

 The breakdown of the distircts in all the ten regions of Ghana are.
Greater Accra.............five
Eastern.....................five
 Brong Ahafo..............four
Volta.........................seven
Central Region........... two.

 Ashanti.....................four
Upper East.................three
Upper West................two
Western......................four
Northern region.............seven.

FROM A LEGAL VIEW
Article 45 of the 1992 Constitution of the Republic of Ghana names the Electoral Commission as the final authority in the demarcation of constituency boundaries. 

Article 47 of the Constitution of the 1992 Constitution provides the factors to be taken into account in the demarcation of constituency boundaries. Article 47 (3) of the constitution states that “The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota” to buttress his point. Article 47 (5) states that “The Electoral Commission shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of a census of the population of Ghana, whichever is earlier, and may, as a result, alter the constituencies.”

Article 48 of the Constitution of the 1992 Constitution provides the procedure for the resolution of grievances, which may arise out of the demarcation of electoral boundaries.
 These some relevant provisions in our constitution to take a look at. The key is to look at it from an objective point of view 

THE 1992 REPUBLICAN CONSTITUTION

The 1992 Constitution of Ghana is the supreme law of the state. This means that no other law in Ghana would supersede this document's authority and if any legislation is enacted that conflicts with the constitution, that legislation would be declared, unconstitutional (Article 1(2)). It is a law of the people and for the people because unlike any of the legislations in the country, there was a referendum by the people to accept it into force. It is also from the constitution that the people gain the sword of the ballot box through the universal adult suffrage to vote some officials like the president to rule them.

The 1992 Constitution of the Republic of Ghana was approved on 28 April 1992 through a national referendum after 92% support and came into effect on January 7, 1993. It declares Ghana to be a unitary republic with sovereignty residing in the Ghanaian people. The preamble to the 1992 constitution of Ghana starts with the following words: “IN THE NAME OF THE ALMIGHTY GOD WE THE PEOPLE OF GHANA…’. This affirms and presupposes that the government exists to serve the people. Also Article 1 provides that The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution. Article 125(1)(3) of the 1992 Ghana Constitution states that “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.

The document reflects the lessons drawn from the abrogated constitutions of 1957, 1960, 1969, and 1979, and it incorporates provisions and institutions drawn from British and United States constitutional models and is keenly drawn with the intent of preventing another coup, dictatorial government, and one party states, it is designed to foster tolerance and the concept of power-sharing. It also defines the fundamental political principles, establishing the structure, procedures, powers and duties of the government, structure of the judiciary and legislature, and spells out the fundamental rights and duties of citizen.

An important part of the constitution is the Preamble which explains the purposes of the Constitution, and defines the powers of the government as originating from the people. It states that:

 IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity;

IN A SPIRIT of friendship and peace with all peoples of the world;

AND IN SOLEMN declaration and affirmation of our commitment to;

Freedom, Justice, Probity and Accountability;

The Principle that all powers of Government spring from the Sovereign Will of the People;

The Principle of Universal Adult Suffrage;

The Rule of Law;

The protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation;

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The preamble is sometimes considered to be the spirit of the constitution.

Another part of much importance in the constitution is the Articles 1- 3. Article 1 talks about the supremacy of the constitution and that, any legislation in conflict with the constitution is deemed unconstitutional. It also talks about the sovereignty of the people in the state. Article 2 gives a sort of right to bring before the Supreme Court of Ghana, any enactment or provision in any enactment that is unconstitutional or any act or omission by any person that is deemed to be unconstitutional. Article 3 of the Constitution, places a duty on the people to o defend this Constitution, and in particular, to resist any prison or group of persons seeking to commit any of the treason or attempts a coup (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated. It seems to me that the constitution seems to support civil disobedience and the phrase ‘all in their power’ could be seen as sanctioning violence, because if all in my power includes taking my AK 47 and recruiting people to resist the acts talked of in Article 3(3), isn’t it violence and am I not within my right in the confines of the constitution?

Also another part to look at is 17(1) which reads, “All persons shall be equal before the law.”  The exception to this provision is seen in Article 57 (2) which states that “The President shall take precedence over all other persons in Ghana; and in descending order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take precedence over all other persons in Ghana.” Article 57(2) seems somehow problematic, because it for instance, the president murders, is he to go scot free. How about if there is a national emergency are they to see to the safety of the president before that of women and children? If we are to be equal, how come some people in the country are to take precedence of others. Maybe in the latter scenario, the rationale would mean that in times of national emergency, we would need someone to still take care of the administration of the country and to avoid any conflict of who it should be the sitting president , the vice president, speaker of parliament and chief  justice safety should be assured before any other to prevent any anarchy of any sort.

Article 19(2) of our constitution provides to the effect that whenever a person is charged with an offence the punishment of which is death or life imprisonment and the said offence is neither high treason nor treason then such a person is to be tried by a judge and jury. Ostensibly, this is to make sure that such a person is tried by his/her peers with regards to the factual basis of his crime at least to make sure in the minds of like-minded people that his actions presents the actions of someone who deserves to be imprisoned for life or to suffer death. The question one may ask is that, is the jury trial very efficient?

We also have the second schedule of the constitution which provides for the oaths. An example is the Oath of Allegiance.

THE OATH OF ALLEGIANCE

I,.........................................................................................................do (in the name of the Almighty God swear) (solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of Ghana; and that I will preserve, protect and defend the Constitution of the Republic of Ghana. (So help me God).

To be sworn before the President, the Chief Justice or such other person as the President may designate.

THE CONSTITUTIONAL REVIEW.

The president of Ghana, His Excellency Prof. John Evans Atta Mills on the 11th of January 2010, inaugurated a nine (9) member constitution Review commission (CRC) The Constitution Review Commission (CRC) was set up by a Constitutional Instrument 2010 (C.I.) 64 as a Commission of Inquiry to conduct a consultative review of the operation of the 1992 Constitution. The Commission would operate as a quasi-judicial body for 12 months and not more than 18 months. It is under the chairmanship of Professor Albert Fiadjoe, an Emeritus Professor of Law at the University of West Indies. One of its functions includes the making of recommendations to the government for consideration and providing a draft Bill for possible amendment to the 1992 constitution.

QUESTIONS TO CONSIDER( for patriots only)

·        What are the colours of our flag?

·        What is the significance of the colours of the flag?

·        Mention and explain two important articles in the 1992 Constitution.

·        What is the Constitution?

·        Can the Constitution be changed?

·        What do we call a change to the Constitution?

·        How many changes or amendments are there to the Constitution?

·        How many branches are there in our government?

·        What are the three branches of our government?

·        What is the legislative branch of our government?

·        Who is the Chief Justice of the Supreme Court?

·        Who said,

·        ‘the independence of Ghana is meaningless unless it is linked with the total liberation of Africa’

·        "Common territory, language and culture may in fact be present in a nation, but the existence of a nation does not necessarily imply the presence of all three. Common territory and language alone may form the basis of a nation. Similarly, common territory plus common culture may be the basis. In some cases, only one of the three applies. A state may exist on a multi-national basis. The community of economic life is the major feature within a nation, and it is the economy which holds together the people living in a territory. It is on this basis that the new Africans recognise themselves as potentially one nation, whose domination is the entire African continent."

·        "In the very early days of the Christian era, long before England had assumed any importance, long even before her people had united into a nation, our ancestors had attained a great empire, which lasted until the eleventh century, when it fell before the attacks of the Moors of the North. At its height that empire stretched from Timbuktu to Bamako, and even as far as to the Atlantic. It is said that lawyers and scholars were much respected in that empire and that the inhabitants of Ghana wore garments of wool, cotton, silk and velvet. There was trade in copper, gold and textile fabrics, and jewels and weapons of gold and silver were carried."

·        "We shall measure our progress by the improvement in the health of our people; by the number of children in school, and by the quality of their education; by the availability of water and electricity in our towns and villages, and by the happiness which our people take in being able to manage their own affairs. The welfare of our people is our chief pride, and it is by this that my Government will ask to be judged."

·        ‘if you educate a man you educate a person, if you educate a woman, you educate a whole nation.’

·        ‘We are not incapable of supporting our own’

·        ‘Education, particularly higher education, will take Africa into the mainstream of globalization.’

·        ‘Ours is not a poor country and even though we are now a poor people, there should be no room for the despondency that has settled on large sections of the population.’

·        How many terms can the President serve?

·        According to the Constitution, a person must meet certain requirements in order to be eligible to become President. Name one of these requirements.

·        Who selects the Supreme Court justice?

·        Who is the Commander in Chief of the Ghana military?