Abuse of Discretion: A Threat to the Administrative Justice in Ghana

Outline:

To carry my most venerated readers as well as the general public along in reading this article, I seek to provide this outline to serve as a map or a radar to direct and guide their reading. However, this article addresses the following sub-topics/aspects:

0.1 Introduction

0.2 Definition of Discretion

0.3 Nature of Discretion

0.4 Principles on which discretion is exercised

0.5 Exercise of discretionary power

0.6 Powers to act and to exercise discretion

0.7 Is the power to exercise discretion delegable?

0.8 Five (5) key steps to be followed when exercising discretion

0.9 Abuse of discretion

0.10 How decision makers should exercise discretionary power

0.11 Grounds of Judicial Review

0.12 Recommendations

0.13 Conclusion

0.1 Introduction

“When a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other following conditions were satisfied viz. the order was contrary to law, or irrelevant factors were considered, or relevant factors were not considered or the decision was one that no reasonable person could have taken.” This quote was given by Lord Greene, M.R in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. Under the Ghanaian Constitutional regime, any person or authority is vested with the power to exercise discretionary power wherever whatever. However, the glaring caveat is that, the exercise of the discretionary shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike. In fact, the implication is that, in one’s exercise of discretion shall be done in coterminous with due process of law. See article 296 of the Constitution, 1992.

0.2 Definition of Discretion

From Cambridge Dictionary, (1) discretion is defined as the ability to behave without causing embarrassment or attracting too much attention, especially by keeping information secret: (2) discretion is defined as choice, or the right to make a choice, based on judgment. According to Cornell Law School, discretion is the power of a judge, public official or private party to act according to the dictates of their own judgment and conscience within general legal principles. In criminal and tort law, discretion is the ability to judge between right and wrong, which is sufficient to hold one liable for one’s own conduct. For example, a judge may have discretion over the amount of a fine, a prosecutor may have discretion when prosecuting a criminal case.

0.3 Nature of Discretion

Discretion, as opposed to judgment, is usually to be applied where it is expressly left to the functionary to make a determination at any point within a given range. The most obvious way for an enactment to confer a discretion is by the use of the term ‘may’. The laying down of guidelines is often, though not always, the sign of a discretion. In so far as a court purports to ascertain and declare an uncertain or disputed legal rule and apply it in the instant case, the decision by which it does this is properly called an exercise of judgment. If, however the court purports to go beyond this and alter the relevant law, it is exercising a discretion.

0.4 Principles on which Discretion is Exercised

The law recognizes certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court. What, then, are those principles? They are perfectly well understood. The exercise of such a discretion must be a real exercise of the discretion. When exercising discretion, decision makers must give regard to the principles of (1) Reasonability/reasonableness and (2) Impartiality. However, they must not handle matters in which they have an actual or reasonably perceived conflict of interest. In the case of Associated Provincial Picture Houses Ltd. V Wednesbury Corp. Facts of the Case: The facts of Wednesbury are critical to the discourse on the subject matter. The plaintiff company, the owners and licensees of the Gaumont Cinema, Wednesbury, Staffordshire, were granted by the defendants who were the licensing authority for that borough under the Cinematograph Act, 1909, a licence to give performances on Sunday under S.1 (1) of the Sunday Entertainments Act, 1932; but the licence was granted subject to a

condition that “no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not.” In these circumstances the plaintiffs brought an action for a declaration that the condition as ultra vires and unreasonable. Held: The Court held that in considering whether an authority having so unlimited power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The Court cannot interfere as an appellate authority overriding the decisions of such authority but only as a judicial authority concerned to see whether it has contravened the law by acting in excess of its power.

0.5 Exercise of Discretionary Power

Importantly, the exercise of discretion requires the exercise of good judgement. Under article 296 of the Constitution, 1992, Where in this Constitution or in any other law discretionary power is vested in any person or authority- (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power. The first bold attempt to regulate administrative discretionary in Ghana was hit with some significant road block. In Captan v Minister of Interior (1970) CC 35.  Facts: The plaintiff, a Lebanese national, brought an action against the Minister at the HC in connection with the revocation of his residence permit. Sections 7&8 of the Aliens Act, 1963 (Act 160) permitted the revocation of a residence permit by a Minister. The question was whether or not this violated the fundamental human rights of the plaintiff, and whether or not the Minister was required within the contemplation of art.173 in taking the decision to expel the plaintiff. Held: The court held that the “Minister in expelling an alien under sections 7 and 8 of the Aliens Act does not exercise such a discretionary power as falls within the purview of Article 173, and he is not obliged to assign reasons”; That the Constitution itself does not confer such powers. It said “…only in cases where the exercise of administrative or executive power involves an enquiry of “judicial” or “quasi-judicial” nature can the provisions of Article 173 be invoked; and that the concept of due process of law can only be invoked in such a case to require adherence to certain accepted procedural observance.”

0.6 Powers to act and to exercise discretion

For public sector decision making, legislation, generally provides the lawful authority for action to be taken and for decisions to be made. Public sector decision making may be undertaken:

1. As part of fulfilling responsibilities to ensure the efficient and effective management and performance of a public authority, e.g. under the general public sector legislation; or
2. As part of taking action or making decisions under agency or department specific legislation relating to the services delivered by the public authority. Legislation often compels a decision maker to act in a particular way. Where the words ‘shall’ or ‘must’ are used in legislation, there is usually no discretion available to the decision maker. For example, if the legislation states that an application must be received by a specific date, the decision maker must refuse the application if it is not received by that date. However, where the legislation uses the word ‘may’, the decision maker is given a discretionary power to deal with a matter and has a choice to make. This choice will often involve an element of judgment about the decision. Can the power to exercise discretion be delegated?

0.7 Is the power to exercise discretion delegable?

The legislation sets out who is given the power to make certain decisions, for example, a Chief Executive Officer (CEO). These powers, including powers to exercise discretion, may be delegated to others under a power of delegation in the legislation. Usually, the power of delegation cannot be delegated. Delegations are generally recorded in writing in a register, instrument or notice and may need to be set out in a Government Gazette. Before taking action or making a decision, the decision maker should check to ensure they have the power to take the action or make the decision and the limits of any discretion that can be exercised. Those who delegate powers to others should consider the following factors:

1. Which actions and decisions should be delegated and which should not;
2. That accountability and transparency are not compromised in decision making; and
3. That efficiency and quality in decision making is maintained.

0.8 Five key steps to be followed when exercising discretion

1. Determine that the decision maker has the power.  Check the relevant legislation and agency policies and guidelines to ensure that the person has the power to act or to make the decision.
2. Follow statutory and administrative procedures.  It is important that the person who is responsible for exercising discretion follows statutory and administrative procedures. For example, there may be pre-conditions to the exercise of discretion such as requiring consultation with a range of people or to advertise a proposal and to receive and consider submissions before a decision is made.
3. Gather information and establish the facts. Before exercising discretion, it is necessary to gather information and establish the facts. Some facts might be submitted with an application made to the decision maker. Others might be obtained through inquiries or investigation. This may require the decision maker to: (a) Review documents; (b) Undertake a site inspection; or(c) Seek specialist advice.
4. Evaluate the evidence. It is important to evaluate and weigh up the evidence, to determine the relevant considerations and key facts. A key fact is something whereby the existence or nonexistence of the fact can affect the decision. The evidence must be relevant to the questions before the decision maker and accurate so that any material facts can be established. When evaluating the evidence, the decision maker must ignore irrelevant considerations.
5. Consider the standard of proof to be applied.  In administrative matters, the standard of proof to be applied is generally ‘on the balance of probabilities’. It is must be more probable than not that the matter or allegations are proven. In general, the more serious the matter and the consequences arising, the higher the standard of proof that is necessary. This standard of proof is that found in the often-cited case of Briginshaw v Briginshaw (1938) 60 CLR 336. The Briginshaw standard possesses a measure of flexibility, so that the more serious the allegation the higher the degree of probability required.

0.9 Abuse of Discretion

Discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable. If the plaintiff or the defendant thinks that the trial court judge has abused the discretion, the party can appeal the case. The appellate judge’s job is essentially to review whether the trial court judge has acted properly and correctly applied the law. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Abuse of discretion is a standard by which appellate courts review certain decisions by lower courts or tribunals. The standard is used when the appellate court is reviewing a “discretionary” ruling/decision of the lower court or administrative body. In the case of Prince Ganaku and 4 Others v Attorney-General and General Legal Council 4 Others [2023] GHACA 37. Facts: The Applicants (numbering five) described themselves as holders of L.L.B. Certificates from various recognised universities across Ghana with passes in the prescribed subjects by law eligible to apply for enrolment in the Professional Law Course run by the Respondent. In their amended motion on notice filed on the 25^th day of June 2020, the Applicants originated the jurisdiction of this Court for the enforcement of their fundamental human rights pursuant to Article 33 (1) of the 1992 Constitution and Order 67 Rule 1 and 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The Respondent is a statutory body established under the Legal Professions Acts, 1960 (Act 32) and is responsible for the legal profession. Particularly, the Respondent is charged with the organization of legal education and the upholding of standards of professional conduct. According to them the undertaking required of candidates to accept the results published as final with no opportunity to seek review or remarking of their scripts was arbitrary, unreasonable and without legal basis. They contended that by its position, the appellant, as an administrative body was in breach of its duty to act fairly and reasonably in terms of the provision in article 23 of the Constitution. Held: The Court allowed the appeal and set aside the judgment of the trial court in its entirety. In the case of Richard Amo-Hene v Ghana Revenue Authority, Attorney-General and Judicial Service. Facts: The Plaintiff (Richard Amo-Hene) invoked the powers of the Supreme Court of Ghana under Article 2 clause 1 of the Constitution of Ghana, 1992 to declare Section 42(5) (b) of the Revenue Administration Act (as amended) and Order 54 Rule 4(1) of the High Court (Civil Procedure) Rules as unconstitutional and consequently null, void and unenforceable. Held: The Supreme Court of Ghana determined that Section 42(5) of the Revenue Administration Act, 2016, (Act 915) and Order 54 Rule 4(1) of the High Court (Civil Procedure) Rules, 2024 (C.I 47) are not inconsistent with or in contravention to constitutional provisions thus dismissed Amo-Hene’s action in its entirety. In Rabkin v. Oregon Health Sciences University (2003). Facts: This appeal by Oregon Health Sciences University (OHSU) from an Order by the United States District Court for the District of Oregon denying Appellant’s motion to reduce a jury verdict requires us to decide whether an award under Oregon’s Whistleblower Law, Or.Rev.Stat. § 659A.203 (2001), is limited to $200,000 as set forth in the Oregon Tort Claims Act (OTCA), Or.Rev.Stat. § 30.270(1) (2001). This appeal by Oregon Health Sciences University (OHSU) from an Order by the United States District Court for the District of Oregon denying Appellant’s motion to reduce a jury verdict requires us to decide whether an award under Oregon’s Whistleblower Law, Or.Rev.Stat. § 659A.203 (2001), is limited to $200,000 as set forth in the Oregon Tort Claims Act (OTCA), Or.Rev.Stat. § 30.270(1) (2001). Held: We hold that the limitation applies and, therefore, reverse the judgment of the district court. The Court also decided in a cross-appeal brought by John Rabkin, M.D., that the district court did not abuse its discretion by not reinstating him as director of OHSU’s Liver Transplant Program.

0.10 How decision makers should exercise discretionary powers

In administrative justice system, decision makers must use discretionary powers in good faith and for a proper, intended and authorised purpose. Decision makers must not act outside of their powers. No decision maker has an unfettered discretionary decision making power. It is not sufficient to exercise discretion and approve an application simply because it seems the right thing to do. When exercising discretion, decision makers need to act reasonably and impartially. They must not handle matters in which they have an actual or reasonably perceived conflict of interest. It is important to apply the values that the legislation promotes, professional values and the values of the agency, not personal values. In exercising discretionary powers, decision makers should have regard to any specific requirements as well as satisfy general administrative law requirements. Some of the general principles relevant to the exercise of discretion are:

• Acting in good faith and for a proper purpose;
• Complying with legislative procedures;
• Considering only relevant considerations and ignoring irrelevant ones;
• Acting reasonably and on reasonable grounds;
• Making decisions based on supporting evidence;

0.11 Grounds of Review

Some of the traditional grounds of review of discretion include;

(i) error of law

(ii) bad faith,

(iii) irrelevant or improper purpose – i.e. illegality

(iv) fettering discretion,

(vi) discrimination.

1. v) failure to consider a relevant ground,

Significantly, it must be pointed out that tthese grounds continue to exist.

But judicial review of discretion, like that of jurisdiction, is normally considered under the standard of reasonableness. Lord Greene examined the two different types of review, as one for determining the extent of the decision maker’s jurisdiction, and the other to determine the reasonableness of the decision in a substantive sense. While the first inquiry relates to the jurisdictional question, the second relates to the exercise of decision-making, or discretion. Generally, where the remedy granted was within those that the decision maker could grant, the decision ought to stand unless it was unreasonable or, what is known as the Wednesbury’s unreasonableness. In Peoples Popular Party v. AG, the question was whether the Police had exercise its discretion reasonably by refusing the applicants, a registered political party, a permit to hold demonstrations in Accra. Articles 23 and 24 of the 1969 Constitution protected fundamental human rights of Ghanaians, including their freedom of movement, assembly and association. Under Act 58 as amended by Act 165, the police had discretionary powers to give permits to people who wanted to hold public gatherings in the country. The applicants applied for a permit to demonstrate through the principal streets of Accra and around the French Embassy and the British High Commission. They wanted to protest against the sale of arms by France and Britain to the apartheid regime in South Africa and the proposed dialogue between South Africa and the Ivory Coast. The Police had earlier given nationals of the UK in Ghana a permit to embark on demonstration against the sale of arms by Britain to South Africa. The police refused the applicants a permit without giving any reasons for their decision. The applicants challenged the decision of the police at the High Court, as an abuse of discretion.

The court per Hayfron-Benjamin J. ruled that the police had abused their discretion. The court concluded that there was no evidence that the police had been fair or candid in the exercise of their discretion. It said in order to prove to the courts that they were acting bona fide, the police had to give reasons for their actions. They gave the applicants no reasons for their decision. The only reason they gave in court for their refusal to provide them with the permit was that a demonstration might infringe international law. That, if the demonstrators went to the foreign mission it could damage Ghana’s interests. The court was of opinion that a permit can only be refused to an applicant if the gathering is likely to lead to a breach of the peace. Since no real reasons were given by the police for their refusal to give the applicant the permit, the court concluded that they had not exercised their discretion properly.

0.12 Recommendations

As a crackerjack student of Administrative Law, I humbly and respectfully proffer the following recommendations to be effectively implemented by the various administrative bodies in Ghana:

1. Administrative decision makers should endeavor to be impartial when making decisions in administrative trials.
2. Reasonability or reasonableness of decisions made by administrative authorities and officers should be given a premium or top-most priority.
3. Clarity of purpose and judgement in policy should be cherished or regarded by administrative officers invariably.
4. Availability of decisions so made by administrative officers to the members of the public.
5. Decision makers should give a great regard to transparency always.
6. Strict compliance with legislation and due process of law.

0.13 Conclusion

In concluding my article, I want to reiterate the fact that, even though the exercise of discretionary power is constitutionally guaranteed in article 296 of the Constitution, 1992, it is not absolute in nature. It is required of any person or authority to exercise this kind of power in all fairness and candidness. It is also sine qua non to state that, in Ghana, abuse of discretion has the potency and vibrancy to thwart smooth running of administrative justice. Indispensably, it is also the case that, myriad people have been served with conviction which if due process of law and discretion were followed and exercised reasonably and impartially by administrative officers, the story would have been different altogether.

By Justice Reuben Adusei (BSc. Economics and Business Administration)

(a Final year student of Kaaf University College, Accra (Bachelor of Laws, LL. B)