2023
SUPREME COURT
CORAM
AI Generated Summary
In an original jurisdiction constitutional challenge, a Ghanaian legal practitioner asked the Supreme Court to invalidate portions of the Companies Act, 2019 (Act 992) that disqualify proposed directors who had been “charged with” certain offences and that allow restraint of persons under investigation from company management. The Attorney-General argued a purposive interpretation aimed at sound corporate governance in light of the 2017–2018 banking crisis. The Court, per Ackah-Yensu JSC with concurrences by Pwamang JSC and Asiedu JSC, reaffirmed the presumption of innocence and separation of powers, holding that automatically equating “charged” with “convicted” violates Article 19’s fair trial guarantees. It struck down the words “charged with or” in sections 13(2)(h)(i)-(ii) and 172(2)(a)(i)-(ii). Conversely, it upheld section 177(1)(c),(e), interpreting it as a judicial mechanism requiring notice, hearing, and proof of culpability, thus consistent with Articles 19 and 125(3).
ACKAH-YENSU JSC;
INTRODUCTION
The common-law presumption acknowledged among the comity of nations and given constitutional recognition in our legal system, that a person charged with a criminal offence shall be presumed innocent until he admits
his guilt, or his guilt is otherwise proven by the prosecution beyond reasonable doubt, is pivotal to the instant suit.
The legislative and executive policies intended to achieve proper corporate governance of companies resulted in the passing of novel provisions in the Companies Act, 2019 (Act 992). Some of the provisions are also, of similar implications from the repealed Companies Act, 1963 (Act 179). Under the new legislative regime in Act 992, a person who has been charged with a criminal offence or who is convicted of a criminal offence may pursuant to an order of the court, be debarred from holding the position of director of a company, an auditor, receiver, liquidator or in anyway, whether directly or indirectly partake in the management of a company.
Further, Act 992 attempts, through an order of a court, to prohibit persons who are under investigations for being related to of the commission of a criminal offence, whether convicted or not, from being a director of a company or in any way controlled by being concerned with the management of a company, act as auditor, receiver, or liquidator for a specified period in the order of the court.
It must be emphasised from the outset that our criminal and constitutional jurisprudence are ad idem that to be charged with a criminal offence is not to be convicted of a criminal offence. In this action, we are invited to test the
relevant provisions under the Companies Act, 2019 (Act 992) that hinge on the disqualifications of persons from being directors or otherwise concerned with the management of companies upon being charged with a criminal offence and ascertain whether those provisions are compliant with the letter and spirit of the 1992 Constitution, particularly Articles 19(1); 19(2)(c) and 15(3).
BACKGROUND
On the 25th day of March 2022, the Plaintiff, a citizen of Ghana and a Legal Practitioner, invoked the original jurisdiction of this Court under Articles 2(1) (a) and 130(1) of the 1992 Constitution, by a writ of summons for the following reliefs:
1. A declaration that the first part of subsection 2(h)(i) of section 13 of the Companies Act, 2019 (Act 992) which makes a proposed director on an application for incorporation to deliver to the Registra