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July|August 2003
Second-Class Citizens By Chris Mooney
Ideology Matters By Katherine Marsh
For the Record By Nicholas Thompson
Is Everything Sacred? By Jori Finkel

For the Record

Kojo Bentsi-Enchill believes the best check on Ghana's judiciary is information.

By Nicholas Thompson

IN A DRAB ROOM OF A SECLUDED OFFICE BUILDING IN GHANA, 10 secretaries are engaged in a mundane task. They're sitting at wooden desks with huge stacks of paper piled in front of them, typing handwritten legal documents into their computers. When they complete a file, they send it downstairs for proofreading by lawyers in the firm that sponsors the work.

For a decade, those working on the project have entered and proofread 80,000 pages of legal records. They've entered every word from each year of the available Ghana Law Reports, the country's official record of high court, appeals, and supreme court rulings going back to 1959, and all of the issues of Ghana's law reviews, including the University of Ghana Law Journal, dating back to 1964. They've compiled a list of Ghana's laws and regulatory notices. They've also created compendiums on human rights, business, and major Ghanaian cases. Their work is now for sale on CD-ROMs.

Kojo Bentsi-Enchill has overseen this ambitious undertaking. A tall, graceful 53-year-old man with a soothing voice, Bentsi-Enchill founded Bentsi-Enchill & Letsa, one of Ghana's most prestigious law firms, in 1990. The clients of the 15-lawyer firm include mining companies, large banks, and foreign investors and it turns a pretty good profit, but Bentsi-Enchill has nearly bankrupted it on several occasions in his quest to compile a database of Ghana's legal history. (At times, he has moved the database's operations into the basement of his house to save money.) The project has consumed most of his weekends, and many of his weeks, for the past decade. Yet he considers it time well spent, because he believes that an online legal database is essential to the West African nation's stability. Universal access to the law, he thinks, could make Ghana's legal system fairer and deepen its nascent democracy. As he put it, "A law-savvy populace is surely harder to dupe or deprive of its rights than a law-ignorant populace."

Twenty million people belonging to six major ethnic groups live in Ghana. Though neither the biggest nor the most important country in Africa, Ghana has often been an exemplar for the continent. The former British colony led the rush to independence, winning its freedom in 1957 and becoming a republic in 1960. It has had three consecutive democratic elections, each one fairer than the last. It has a free press. More than a dozen newspapers, ranging from the sober to the scandalous, vie for attention at kiosks in cities like Sekondi-Takoradi, Cape Coast, and Accra, the capital. Ghana has managed to remain peaceful in a very tough neighborhood. Just a few hours' bus ride to the east, Nigeria is periodically stricken by ethnic riots, disrupting its political stability and oil supply. And to the west, neighboring Ivory Coast has spent the last six months tottering on the edge of the sort of civil war that has devastated Sierra Leone and Liberia.

But Ghana's virtues don't include a functional system of legal oversight. It has no Freedom of Information Act, for example, and cabinet ministers can write regulatory notices that pass into law without being vetted by the public. The Ghana Law Reports have not been published since 1994, and combined multiyear indexes of the reports don't exist, so lawyers have to pore through every index in the Supreme Court's musty law library to find cases on a topic. Ghana's second-largest city, Kumasi, doesn't even have a law library.

The nearly $2 billion budget of the Ghanaian government is unlikely to make up for these inadequacies. Total per capita income is $390 a year, and government expenditures on the entire legal sector were about $2.5 million in 2001, what a good New York lawyer might earn in a year. The organization that produces the law reports has a staff of four who write in longhand.

The absence of good legal records can lead to bad decision making. A search of Ghana's law reports on Bentsi-Enchill's CD-ROMs suggests that judges often unwittingly violate the law. "Per incuriam"—which denotes a decision made because of carelessness—turns up 235 times. The U.S. legal system governs 14 times as many people, but a search of cases on the LexisNexis database turned up only 12 instances of the phrase.

A judge who is not on top of the relevant law may delay a trial to allow himself time for more research. (Indeed, in 1998, the most recent year for which records are available, Ghana's courts rolled over more criminal cases to the following year than they tried or disposed of.) A judge who knows that few people will scrutinize his legal reasoning is more likely to take a bribe than one mindful of observers armed with casebooks and citations.

GHANA'S LEGAL SYSTEM IS A MIX OF TRIBAL LAW and British common law. The balance between the two depends in large part on how far a village is from a city with a court. Tribal law predominates in rural areas. "Customary courts" conduct business in all of the nation's 50-odd languages, and each village has its own justice system. Under Ghana's constitution, a village's laws are allowed to differ from, but not directly conflict with, the country's national code. In most villages, local chiefs make a determination of guilt in minor cases such as squabbles over property boundaries or accusations of theft, and they decide the penalties.

In Patriensa, a village toward the south, for example, Chief Nana Yaw Amponsa will consider any matter from anyone in the village who brings him $4, a couple of days' wages for a farmer, or a suitable gift, like a piece of jewelry or some yams. If Chief Amponsa and the six elders he consults—one from each of the village's major clans—find a defendant guilty, that person is fined up to $12 and asked to give the chief a bottle of schnapps.

Almost all offenses that reach the level of a felony (such as assault or serious fraud) are decided by the formal court system, which is modeled after Britain's. Judges and lawyers speak English and dress in the black robes and white wigs that Ghana adopted during the days of British colonial rule in the early 20th century. Judges interpret Ghana's constitution, which was first written in 1960 and has been suspended or rewritten six times since then. The current version, from 1992, has survived longer than any of the previous ones. In printed form, it is also the best-selling book in Ghana. Judges in Ghana are bound by the principle of stare decisis, which requires that their decisions be based on earlier rulings. But their knowledge of precedent is limited to the case law that they can find.

In Kumasi, 23 soccer players were recently tried on charges of riotous behavior for allegedly threatening to burn down a police station after being arrested. The trial was as high-profile as they get in Kumasi—the courtroom was packed with bystanders dressed in everything from flowing black caftans to baggy jeans and worn-out T-shirts. The defense attorney, Kwame Anyimadu-Antwi, planned to argue that the soccer players' chants were covered by freedom of speech, but he did not know if that form of legal protection had ever been interpreted to encompass threats of violence on this scale. Anyimadu-Antwi had a vague memory of similar cases, but he couldn't scan the Ghana Law Reports because his collection is missing 34 of the last 44 years. The presiding circuit judge, Ernest Yaw Obimpeh, might not have known all the laws relevant to the case. Sitting in his chambers with Ghana's coat of arms on prominent display, Obimpeh said, "There are a thousand and one laws passed, and I don't think anyone has access to them."

The United States faced a similar problem a century ago, and it was a traveling salesman, John West, who came up with a solution. West noticed that businessmen in Minnesota couldn't track down crucial state court decisions establishing, for instance, that contracts transmitted by telegraph are as valid as written ones. The newsletter West created in 1872 to report these judgments served as the foundation for the contemporary legal database Westlaw, which is searched nearly a million times every day.

BENTSI-ENCHILL IS THE SON OF KWAMENA BENTSI-ENCHILL, a former Ghanaian Supreme Court justice who lost his job when a military government abolished the court in 1972. (It was reinstated in 1977.) He also wrote the first modern textbook on Ghanaian law and influenced "choice of law" rules, which govern whether customary or common law is applied. As a child, Bentsi-Enchill knew he wanted to be a lawyer, but his father wanted him to come up with a better reason than filial imitation. Eventually, he came up with one that satisfied his father: "It's as good a way of helping one's country as any."

Bentsi-Enchill grew up in the same two-story house in downtown Accra where he lives now. He attended high school in England but returned to Ghana, at his father's prompting, to earn degrees in political science and law at the University of Ghana at Legon, the country's top university. Afterward, he went back to England to do postgraduate research at Cambridge University on the law of mining concessions. He then moved to New York, where he worked as a foreign associate at the law firm of Shearman & Sterling. He was struck by how online legal databases improved the work ethic and research of his colleagues. "It ensured that there was no excuse for not being thorough," he recalled.

While abroad, Bentsi-Enchill kept an eye on his home country as it underwent the worst financial and judicial crisis in its history. Army officers staged coups in 1978, 1979, and 1981. In 1982, three judges who had displeased the military government were kidnapped, murdered, burned, and then tossed by the side of a country road.

In 1988, once Ghana had stabilized, Bentsi-Enchill returned home. He founded his law firm and began a center that provided typing and other services for business clients. After a few years, Bentsi-Enchill became convinced that the absence of good legal libraries was impeding the justice system. From afar, he had witnessed how Ghana's previous military government had undermined order by flouting the courts. Back home, he began to wonder: If military governments can destroy legal institutions, could legal information organized by citizens deter military governments?

The answer seemed to lie in the computers at his office that were sitting idle at night. Seeing an opportunity to do good, and perhaps to do well, he hired secretaries to type in old legal reports after hours. "We had the computers, and we had the employees," he said from behind his desk as he glanced over a prototype of an online legal journal he wants to create. "I had the passion and the willingness, so I said, Why not?"

He established DataCenta, a subsidiary to his law firm, to take charge of the database. He also wrote Ghana's first legal dictionary, which contains statutory definitions. He even inspired one of his law firm partners, Ace Ankomah, to put together the first consolidated index of the Ghana Law Reports. Regarding the database, Ankomah said, "The product is where it is because my partner is crazy. Any sane person would have given up years ago."

DataCenta has won a few grants to support it, but the law firm provided 95 percent of the $300,000 required to build the database. The biggest challenge it faces is not financial but structural. The government of Ghana claims ownership over all legal documents and materials published by the court system. Bentsi-Enchill has to win licenses from the government and pay royalties to publish court proceedings.

CD-ROMs of the database are now on sale at prices ranging from $60 for those containing information about regulatory notices to several thousand dollars for multiuser access to the Ghana Law Reports. This year, for the first time, DataCenta might break even. Bentsi-Enchill is negotiating with the company that owns LexisNexis to make Ghana's legal records available to LexisNexis subscribers around the world. But he would prefer to get a grant that would allow him to put the entire project online for free.

ANYIMADU-ANTWI HAS ORDERED A CD-ROM of the law reports because he believes it will improve his ability to defend his clients. Bentsi-Enchill said that the people he represents at international companies have become enthusiastic users. A small group of judges frequently call his firm to ask the lawyers to search the CD-ROMs for information on past cases.

But the database hasn't transformed Ghana's legal culture. Bentsi-Enchill doesn't have the money to advertise his database, and even if he did, few Ghanaians and fewer lawyers and judges would have the computers necessary or the means to buy the CD-ROMs. Ghana is one of the most wired countries in Africa, but that distinction should be put in perspective: New York City has as many Internet connections as all of sub-Saharan Africa. Only educated, English-speaking, urban Ghanaians have Internet access, and most of them use torturously slow modem connections.

Rural Ghana has few computers and is deeply rooted in tribal customs. Bentsi-Enchill's firm recently advised a chief in a town in the western region to get an injunction against a company that wants to raze the post office and a school to set up a gold surface-mining facility. But the chief decided not to take his advice, and chose instead to try to persuade the company to obey ancient edicts that give him the power to decide which buildings should be erected and which destroyed. The townspeople are deeply attached to their chief—even though bulldozers could be sent in to tear down parts of their community.

Bentsi-Enchill concedes that his database is "an element of change, not a guarantor of it." He has finished typing for the moment, but his task is far from complete. He must now convince his countrymen that a CD-ROM can offer them hope—and more power than a chief.

Nicholas Thompson is a fellow at the New America Foundation.

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