February 18, 2008

The Acting Commissioner:

REF: IN THE MATTER BETWEEN PROSPER TSIKATA AND THE AGRICULTURAL DEVELOPMENT BANK

Thank you very much for your correspondence reference 553/2006/1957 dated May 12, 2007, posted February 5, 2008 in Accra and received February 10, 2008.

May I be granted the opportunity to restate that I sought the institutional intervention of CHRAJ to discharge its constitutional mandate in the above-headed case based on Article 218 and Article 219 of the constitution to investigate a recruitment process (an administrative procedure requiring Administrative Justice by Article 23) which was not transparent and was largely opened to corruption and was, indeed, manipulated as my own investigations had revealed. Articles 218 (a), (b) and (C), and 219 (a), (b), (c) and other sections latched thereof are emphatic on the powers of CHRAJ.

Essentially, Article 218 (C) empowers CHRAJ to investigate complaints concerning practices and actions by persons, private enterprises and other institutions where complaints allege violations of fundamental rights and, freedoms under the constitution of Ghana. Article 219 (a) also categorically empowers CHRAJ to issue subpoenas requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission.

In view of the above, especially in respect to the Commission’s observation with regard to section 8(a) of the Labour Act, 2003 (Act 651) which states: ‘subject to this Act and any other enactment, the rights of an employer include the right to employ a worker, discipline, transfer, promote and terminate the employment of the worker,’ I wish to state that the constitution of Ghana takes cognizance of our human failures which predispose us to cronyism, nepotism, and discrimination even on ethnic lines as the case is nowadays.

May I submit that it is for this reason that Article 218 and 219 have been etched into the Constitution of Ghana, like checks and balances, to limit the overriding powers of employers in an environment where the rights of prospective employees and workers are at the dictates of employers. This is in order to safeguard and protect the rights of the most vulnerable in our society.

Hence, it is untenable for the Commission, through its functionaries, to instruct the dismissal of my case as a case that lacked substance, especially without investigating to ascertain the substance of what was reported to the Commission.

Acting Commissioner, are you not aware of the situation in our country popularly referred to as the ‘whom you know’ and ‘who knows you’ syndromes? Are you also not aware of the situation in our country whereby thousands and thousands of intelligent, hardworking and well qualified young men and women are robbed of their opportunities due to their ethnic origin, political affiliation and even their familial names?

I, therefore, consider this posture of CHRAJ and its functionaries as constituting a huge affront to the growth of the rule of law and the deepening of the democratic process in Ghana.

But this is not at all surprising when during the preliminary hearings all the case worker, Sally Fredy-Thompson, could say was (as encapsulated in the following bullet points):

(i) ‘CHRAJ does not have jurisdiction over the Agricultural Development Bank, in fact, to summon it for a hearing or investigation.’

(ii) ‘In matters of the sort it was rather appropriate for me to ‘go and lobby’ the recruiting authority (ies) for the job rather than taking a legalistic position. ‘

And then, a year on, after writing, making several phone calls and visiting the Commission to have its written decision, I received this.

Sally Fredy-Thompson should be re-educated on the constitution of Ghana and the powers of CHRAJ. She must also be taught on meritocratic recruitment procedures which are competency-based and offers opportunities to the most qualified rather than the ‘lobbyist dispensation’ which has engulfed our country.

We must remember that it is in public interest that when we handle issues of this nature, we handle them with the utmost care dispensing justice that will stand the test of time and for the good of posterity. If even we err, it must be with caution exhausting the evidence placed before us.

For this reason, if the current proviso, as they stand, encumbers CHRAJ in its work, the onus is on CHRAJ, without further delay, to call for constitutional amendment to expand its orbits to be able to deal with these issues sufficiently rather than hide behind the cloak of supposed `constitutional paucity` to become a white elephant which is unable to serve the purpose for which it has been established, whilst thousands of Ghanaians are robbed of their opportunities.

It must be noted that the democracies we are seeking to emulate have long recognised these faux passé and human weaknesses and have written Acts to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination on account of ancestry, ethnicity, familial status, and political affiliation, among others. Indeed, this is to ensure a fair procedural recruitment process. Examples are the Equal Employment Opportunity Commission (EEOC) and State Fair Employment Practices (FEP) in the United States established by Title VII with enforcement provisions contained in section 2000e-5 of Title 42. Similar constitutional arrangements exist in the UK and there are also ILO provisions for good practices to which Ghana is a signatory.

On this note, I am calling on CHRAJ to immediately take steps to review its decision and make sure it conducts its investigation meticulously before reaching a decision.

Thank you very much for your attention and cooperation.

Sincerely Yours,

Prosper Tsikata (024-2205520)

To: The Speaker of Parliament The Legislative House All Press Houses. Human Rights Bodies Religious Organizations Concerned Ghanaians