Prof. Kwaku Azar writes: One Profession, Two Bars, One Constitution, One Danger
1. Today marks the maiden Annual Bar Conference of the Ghana Law Society (GLS). For GOGO, who has long admired the Bar from afar, it is a moment that produces mixed feelings.
2. On the one hand, Ghana is a relatively small country, and one may reasonably wonder whether we really need two national associations of lawyers. On the other hand, we should not pretend that the Ghana Law Society emerged from nowhere.
3. To understand the moment, it helps to remember the history of the Ghana Bar Association (GBA).
4. It is tempting to romanticize the GBA as a fearless resister of oppressive rule. The historical record presents a more complicated picture than the simple story of a Bar that has always stood fearlessly against political power.
5. During the First Republic, for instance, J. B. Danquah relentlessly challenged preventive detention through the courts and eventually became a detainee himself.
6. Yet the historical record is that other members of the Bar were “ominously silent” during much of that struggle, even while lawyers vigorously resisted attempts to take away their wigs and gowns.
7. That is an uncomfortable reminder that a professional association can sometimes defend the privileges and symbols of the profession more vigorously than the rights of citizens.
8. Yet the GBA also showed flashes of remarkable courage. When lawyers were threatened with imprisonment in 1959, the Association declared that no threat would deter it from defending citizens and insisted that “the upholding of rights cannot be subordinate to political expediency.”
9. That principle should be written on the wall of every Bar conference.
10. Successive governments understood that controlling the Bar mattered. Between 1963 and 1966, attempts were reportedly made to secure GBA leaders more sympathetic to the government. Lawyers resisted by ceasing to hold formal meetings.
11. But the GBA itself was not always consistent. After the overthrow of the CPP, the NLC enacted measures targeting CPP officials and activists.
12. The GBA did not protest, as recorded by the National Reconciliation Commission (NRC). Indeed, GBA President Victor Owusu became Attorney-General and assumed responsibility for drafting some of the new government’s laws.
13. During the Second Republic, lawyers were prominent in the Progress Party. The NRC observes that their voices were not heard over the implementation of the Aliens Compliance Order or the Apollo 568 dismissals.
14. The lesson is important. The real test of a Bar is not whether it can condemn injustice committed against people with whom its members sympathize. The harder test is whether it will defend the rule of law when the victim is politically unpopular or belongs to the other side.
15. During the Acheampong era, the GBA became one of the country’s most important centres of resistance to military rule.
16. It opposed military justice and the Union Government project. The NRC cites an assessment describing lawyers as virtually the only organized body of public opinion able to voice such criticisms openly.
17. The GBA helped establish the Association of Recognised Professional Bodies, which became important in the resistance to Acheampong. Some lawyers paid for that resistance with detention.
18. The confrontation became even sharper under the PNDC. The GBA repeatedly demanded a return to constitutional government. It called for political detainees to be tried or released. It challenged arbitrary detention, restrictions on the press and the prolonged curfew. It protested prison conditions and established a Human Rights Fund to assist families of persons detained without trial.
19. It opposed the Public Tribunals and boycotted them, although, importantly, the NRC also criticized an unintended consequence of that decision: some accused persons ended up facing serious charges without lawyers.
20. Lawyers’ chambers were vandalized. Lawyers were attacked in the state-controlled media, investigated over taxes, detained and brutalized. Some fled the country.
21. Yet GBA President Enoch D. Kom responded with five memorable words: “No one can shut us up.”
22. The GBA also refused to allow the murder of the three High Court judges to disappear from national memory. It established Martyrs’ Day.
23. In 1989, shortly before Martyrs’ Day lectures appropriately themed “Rule of Law,” GBA President Peter Ala Adjetey and other national officers were arrested and detained. The lectures had to be cancelled.
24. This was not cocktail-party constitutionalism. There were real consequences for speaking.
25. Today’s Ghana Law Society is not actually Ghana’s first experiment with a rival lawyers’ association.
26. During the PNDC era, Thomas Ward-Brew challenged the GBA’s position as the principal association of lawyers and subsequently announced a rival Bar Association of Ghana (BAG).
27. Another organization, the Ghana Association of Democratic Lawyers (GADL), also emerged and was associated with lawyers sympathetic to the revolutionary order and the Public Tribunal system.
28. History therefore gives us reason to think carefully about what is happening today.
29. The GBA’s heroic years were largely forged when constitutional government itself was endangered.
30. Under military rule, some questions were relatively straightforward: Should soldiers govern? Should citizens be detained indefinitely without trial? Should courts be bypassed? Should military or public tribunals replace ordinary courts? Should citizens have access to lawyers?
31. The Bar could therefore stand against the State in defence of identifiable constitutional principles. The Fourth Republic changed the terrain.
32. Now governments are elected. Political parties alternate in power. Constitutional disputes frequently involve reasonable disagreements about the meaning of the Constitution, institutional powers and public policy.
33. In that environment, the distinction between defending constitutional principle and taking partisan political positions becomes much harder, and much more important, to maintain.
34. Over time, rightly or wrongly, some lawyers and Ghanafuo have come to perceive the GBA as tilting too far toward one side of Ghana’s political divide.
35. And once a professional association becomes widely perceived as politically aligned, the conditions are created for a counter-association to emerge. That helps explain why the arrival of the Ghana Law Society should not surprise us.
36. GOGO believes that the answer to a Bar perceived to lean right cannot simply be a new Bar that leans left.
37. If that happens, Ghana has solved nothing. We would merely have imported the NPP-NDC divide into the organized legal profession.
38. We have already seen what partisan student organizations such as TEIN and TESCON can do to the space once occupied by independent student activism. We should be careful not to reproduce that model in the legal profession.
39. One Bar issues statements that one half of the country applauds. The other responds with statements that the other half applauds. Every constitutional question becomes another proxy political battle. Lawyers begin choosing professional associations according to political sympathies.
40. And gradually we lose something much more valuable than organizational unity: an independent professional voice capable of telling every government what it does not want to hear.
41. That is the real lesson from the GBA’s history. Its finest moments were not when it was left or right. They were when it was prepared to defend the rule of law regardless of who occupied the Castle and regardless of who was suffering the abuse. Its weaker moments came when political proximity, professional self-interest or the identity of the victim muted that voice.
42. So two Bars may not be the real problem. Competition can sometimes strengthen institutions. A second lawyers’ association may challenge complacency, broaden participation and force both organizations to explain what they stand for.
43. The greater danger is two partisan Bars. Ghana does not need a legal society for each political tradition. GOGO rejects a TESCON Bar and a TEIN Bar.
44. Ghana needs lawyers, whether GBA, GLS or neither, prepared to defend the same constitutional principles when the NPP governs, when the NDC governs, and when the person whose rights are threatened is someone they profoundly disagree with.
45. The old GBA once proclaimed that “the upholding of rights cannot be subordinate to political expediency.” More than sixty years later, that should remain the standard.
46. Perhaps the arrival of the Ghana Law Society should therefore not merely provoke the question: Why do we now have two Bars?
47. The more important questions are: What caused enough lawyers to believe that one was no longer sufficient? Can the GBA recover the broad institutional trust that once made it such a formidable national voice? Can the GLS avoid becoming merely the ideological mirror image of what it criticizes?
48. And, above all: Can both societies remember that their ultimate loyalty must be neither to the left nor the right, but to the Constitution, the rule of law and the liberty of the citizen?
49. GOGO therefore welcomes the GLS, albeit with some trepidation. It admonishes the new Society not to lean left merely because it believes the old Bar leans right. Lean neither left nor right. Lean toward principle.
50. And to the GBA, the emergence of the GLS should invite reflection rather than resentment. Rival institutions rarely emerge in a vacuum. The proper response is not to ask merely who formed the rival association, but why enough lawyers believed there was room, or need, for one.
51. As a non-Bar-member observer who has admired the Bar’s historic contribution to constitutional government, GOGO hopes that competition between the two societies will produce more independence, more courage and more fidelity to principle—not two political camps wearing wigs and gowns.
One profession. Two Bars. One Constitution. One Danger.