Debates of 12 Feb 2014

MR SPEAKER
PRAYERS 10:55 a.m.
VOTES AND PROCEEDINGS AND THE OFFICIAL REPORT 10:55 a.m.
Mr Speaker 10:55 a.m.
At the commencement of Public Business, Hon Majority Leader are you ready for item number four (4) on the Order Paper?
Dr Benjamin B. Kunbuor 10:55 a.m.
Well, the Hon Attorney-General and Minister for Justice is here, so we will take it; the Chairman is on his way here.
Mr Speaker 10:55 a.m.
Is the Report ready?
Dr Kunbuor 10:55 a.m.
Yes, Mr Speaker.
BILLS -- SECOND READING 10:55 a.m.
PARLIAMENTARY DEBATES 12:25 p.m.
OFFICIAL REPORT 12:25 p.m.
CONTENTS 12:25 p.m.
SECOND READING OF BILLS -- 12:25 p.m.
CONSIDERATION STAGE OF BILLS -- 12:25 p.m.
THE 12:25 p.m.
PARLIAMENT OF THE REPUBLIC 12:25 p.m.
OF GHANA 12:25 p.m.
MR SPEAKER
PRAYERS 10:55 a.m.
VOTES AND PROCEEDINGS AND THE OFFICIAL REPORT 10:55 a.m.
Mr Speaker 10:55 a.m.
At the commencement of Public Business, Hon Majority Leader are you ready for item number four (4) on the Order Paper?
Dr Benjamin B. Kunbuor 10:55 a.m.
Well, the Hon Attorney-General and Minister for Justice is here, so we will take it; the Chairman is on his way here.
Mr Speaker 10:55 a.m.
Is the Report ready?
Dr Kunbuor 10:55 a.m.
Yes, Mr Speaker.
BILLS -- SECOND READING 10:55 a.m.
Mr George Loh (NDC -- North Dayi) 10:55 a.m.
Mr Speaker, I beg to support the Motion and in so doing, wish to read the Committee's Report --
Mr Speaker 10:55 a.m.
In what capacity are you doing that? This is because I called the Chairman. If you are presenting the Report on behalf of the Chairman, for the purpose of the records --
Mr Loh 10:55 a.m.
Mr Speaker, I am a member of the Committee [Interruptions.]
Mr Speaker 10:55 a.m.
So you are presenting the Committee's Report on behalf of the Chairman?
Very well. Please, proceed.
Mr George Loh 10:55 a.m.
Mr Speaker, on behalf of the Chairman of the Committee, I beg to present the Committee's Report.
Introduction
The Trademarks (Amendment) Bill, 2013 was presented and laid in Parliament on Thursday, 21st November, 2013. In accordance with article 106 (4) and (5) of the Constitution and Order 179 of the Standing Orders of the House. Mr Speaker referred the Bill to the Committee on Constitutional, Legal and Parliamentary Affairs for consideration and report.
The Acting Registrar-General, Mrs Jemima Oware and other officials from the Registrar-General's Department, the Attorney-General's Department and the Ministries of Justice and Trade and Industry led the Committee in the discussions. The Committee is grateful to them for the assistance.
Mr George Loh 10:55 a.m.


Reference

The Committee referred to the follow- ing documents during its deliberations:

i. The 1992 Constitution

ii. The Standing Orders of Parliament

iii. Trademarks Act, 2004 (Act 664)

iv. Trademarks Act, 1963 (Act 270)

v. Trademarks Regulations,1970,

L.I. 667.

Background

Ghana enacted the Trademarks Act, 1963 (Act 270) to provide for the protection of trademarks and for other related matters. The law after almost four decades in operation, was replaced by the enactment of the Trademarks Act, 2004 (Act 664). The enactment of Trademarks Act, 2004 (Act 664) was to update Trademarks Act, 1963 (Act 270) and to incorporate some provisions of the Trade- Related Aspects of Intellectual Property Rights (TRIPS) Agreement into the laws of Ghana.

The TRIPS Agreement inter alia, establishes minimum standards for intellectual property protection to be adhered to by member countries. Ghana being a signatory to the TRIPS Agreement had to internalise provisions of the Agreement into our domestic law.

The Madrid Agreement concerning the Intellectual Registration of Trade of

Marks adopted at Madrid on the 14th day of April 1981, as subsequently revised and amended and its subsequent Protocol adopted at Madrid on the 27th day of June, 1989 as amended from time to time created the need for revision and updating of our law. These international agreements and protocols reflected the dynamics and changing circumstances of creativity and innovation and improved the standards for the protection of intellectual property rights.

Some of the obligations under the revised Protocols could be provided for in regulations. There are also issues of procedure to be followed when dealing with requests for extension of protection to Ghana and communication of information to the International Bureau.

Object of the Bill

The Bill seeks to amend the Trademarks Act, 2004 (Act 664) to give the Minister responsible for Justice the authority to make provisions to give effect to some of the obligations of the country under the Madrid Protocol and other related Treaties. This authority had earlier not been granted by existing law.

The Bill also seeks to create a single system with respect to the renewal of trademarks by reconciling the earlier provisions in the Trademarks Act, 2004 (Act 664) and the repeals and savings provisions of the same law in respect of renewal periods for the registration of trademarks in the country.

The law as it stands now is that the repealed Trademarks Act, 1963 (Act 270) provided that the registration period of a trademark was 7 years and the renewal period was 14 years.

This was replaced by section 10 of the Trademarks Act, 2004 (Act 664) which provides that the registration of a trademark is for a period of 10 years and be renewed for consecutive periods of 10 years.

The repeals and savings provision of Trademarks Act, 2004 (Act 664), however, provide that trademarks registered under Trademarks Act, 1963 (Act 270) are to be renewed for a period of 14 years from the date of the original registration or of the last renewal of registration.

Observations

The Committee observed that under the Trademarks Act, 2004 Act (664), trademarks are registered without recourse to the goods and services to which they are appl icable. The Bill under consideration however, makes it obligatory on any person registering a trademark to attach to the application, a reproduction of the trademark and a list of goods and services for which the registration of the trademark is required. This would introduce clarity and clear doubts as to the identity of the goods or services covered by the trademark.

The Committee also noted with concern the activities of people who pirate on other people's trademarks by introducing similar and identical signs with the intent to deceive the public. The Committee was informed that piracy of trademarks is on the increase. This calls for tougher measures including stiffer punishments.

It is therefore gratifying that the Bill introduces a new provision under clause 9 criminalising such a conduct and prescribes a penalty. The new offence relates to applying a sign identical to a registered trademark to goods with intent to sell the goods or for purposes of labelling, packaging or advertising the goods.

As stated in paragraph 4.3 above, the savings clause of the Trademarks Act, 2004 (Act 664) created a dual system of registration of trademarks in the country. The solution to this problem is the proposal in clause 13 of the Bill introducing uniformity in the renewal regime.

Conclusion

After a thorough scrutiny and deliberation, the Committee is very convinced that the Bill when passed, will ensure that international standards are met, simplicity and clarity of the trademarks regime in Ghana is obtained and Ghanaian entrepreneurs and creators better protected and motivated to invest more in intellectual property.

The single and direct linkage to the global registration system will greatly reduce cost of trademarks registration and also ensure trademarks owners benefit from access to the global market. The benefits to the country are obvious and immense.

The Committee therefore recommends to the House to adopt its Report and pass the Bill subject to the amendments attached.

Respectfully submitted.
SPACE FOR APPENDIX - 10:55 a.m.
SPACE FOR APPENDIX - 10:55 a.m.
SPACE FOR APPENDIX - 10:55 a.m.
Mr Kwame Anyimadu-Antwi (NPP -- Asante Akim Central) 11:05 a.m.
Mr Speaker, I rise to support the Motion on the floor and contribute as well.
Mr Speaker, with the greatest respect, Ghana has acceded to the Madrid Protocol as has already been said by the Attorney-General and Minister for Justice. Ghana is also a member of the Trade-Related Aspects of Intellectual Property Rights, that is, the TRIPS Agreement. When Ghana became a signatory to this law, there were minimum requirements that Ghana needed to incorporate into our domestic law.
We had adhered to that as far as the year 2000. But it has become necessary that some of the TRIPS trade-marks, we have to comply with some relevant provisions having already tested the Trademarks Act. For instance, the renewal of ten years, and the seven years had been in place.
Now, a trademark owner is granted a right of ten years and it is renewable for another ten years. At any time that a trademark owner would want the registration to continue, he can go ahead and renew the registration.
Under the current Act, for instance, the grounds for refusal are fused together; that is the absolute grounds of refusal and the relative grounds of refusal. The amendments seek to bring this clarity into being in order that it would be easier for users of the Act to read and understand the Act as well as implement it. As a private right, it would also boost the interest of private owners or people that are invested under trademarks in order for their businesses to flourish.
With the greatest respect, it is very necessary that these amendments are made in order that we bring this Act to the level of other international provisions.
I therefore, fully support this Motion and pray that these amendments be granted in order that we would give full meaning to the Trademarks Act.
Mr Joseph Yieleh Chireh (NDC -- Wa West) 11:05 a.m.
Mr Speaker, thank you for the opportunity to support this Motion and to urge the whole House to vote for it. It is important in several respects.
If we want to enhance the business environment in Ghana, then we must look at all the procedures that are adopted by companies to protect their interests, that includes trademarks. Therefore, if Ghana was behind after acceding to many protocols as far as trademarks are concerned, it is important that we do so to be in line.
But why trademarks? Trademarks are very important because they tell the story of a company and its products. Some of the products we know, when we go and somebody else is selling a similar product, we say, no, we want the original. Therefore, when we pass this law, modernise it, as we want to do now, we need to enforce it. If we do not enforce it, we have all kinds of fake products with different and similar trademarks on them. Therefore, it would make life very difficult for all of us.
We need to ensure that this particular law we are passing, we empower the Registrar-General to be able to follow-up and ensure that the law is fully enforced for our safety and for reliability of the product that bear the trademarks. It is for this reason I think that all of us should fully support this.
Mr Speaker, I thank you for the opportunity.
Ms Sarah A. Safo (NPP -- Dome/ Kwabenya) 11:05 a.m.
Mr Speaker, I rise in support of the Report and to urge the entire House to agree that indeed, the Trademarks Act needs to be amended and that is what at the Committee level, we sought to do.
Mr Speaker, the new amendment seeks to do a few things and these things were observed at the Committee level.
Dr Anthony A. Osei (NPP -- Old Tafo) 11:15 a.m.
Mr Speaker, I would want to make my contribution in support of the Motion by taking off from where my Hon Colleague just left.
I have no difficulty in introducing amendments to enhance a Bill, but when I am being persuaded, I would want to be convinced with data. Mr Speaker, this is generally true of most committees, but
since we are on this particular Report, I would want to make a reference to the section that the Hon Member for Dome/ Kwabenya just referred to. With your permission, I beg to quote from page 5:
“The Committee was informed that piracy of trademarks is on the increase.”
Then it goes on further:
“This calls for tougher measures including stiffer punishments.”
They are talking about criminalising it. At least, they should provide us with some information to confirm this fact. This is because if the increase is from four to five as opposed to four and one thousand, there is a difference. So, I would want to urge either the Hon Attorney-General and Minister for Justice or the Hon Chairman of the Committee to help us move in that direction with some data. But just saying that it is on the increase, therefore, let us criminalise it -- They have the information; we do not.
It will help us if they provide us with the information, so that we can be convinced. We should not just be taking their words for facts. I would be more persuaded if some statistics were provided, so that when we come to clause 9, I can be persuaded to accept the proposed amendments. As of now, I am not persuaded.
So, I would urge either the Hon Attorney-General and Minister for Justice or the Hon Chairman to provide further particulars.
Mr Speaker 11:15 a.m.
Hon Chairman of the Committee on Constitutional, Legal and Parliamentary Affairs, this is your Report.
Chairman of the Committee (Mr A. S. K. Bagbin) 11:15 a.m.
Mr Speaker, I thank my Hon Colleague, Hon George Loh for seconding
the Motion when moved by the Hon Attorney-General and Minister for Justice. I would want to commend Hon Members for their clear understanding of what trademarks mean and the contributions they have made.
We take the points that Hon Akoto Osei raised in good faith and in the subsequent reports, we will try and add more flesh to the bone.
Definitely, the sponsoring Ministry was able to draw our attention to the increase in piracy in the country, not so much with data but with examples. They gave us some examples of the manufacturing industry, where on the market, one will see that some companies are using names and symbols similar to those used by earlier companies that have got an urge on the market. He cited, for example, the paint industry and I recall -- I am trying to get the name of the paint - - Dulux paint.
Now, if one goes to the market, one would see a similar paint also using Delux. So, one is Dulux and another is Delux. They are so similar that one thinks they are the same, so, one just buys it without looking at it. One is a trademark registered by one of the companies. I think the Dulux is the registered trademark. Now, somebody too is manufacturing paint using “deluxe”. So, it is so confusing. That is one of the examples they cited.
There were other examples, but I do not have the minutes here. That is what led to the use of that sentence. But it is true that we should give more details in our report, so that Hon Members who are not Hon Members of the Committee will better understand the judgemental statements that we sometimes make in our reports. So, we take it in good faith.
Thank you, very much.
Mr Speaker 11:15 a.m.
Hon Member, you have already spoken. Do you want to clarify something?
Mr Anyimadu-Antwi 11:15 a.m.
With the greatest respect, Mr Speaker directed that he wanted some more information and I wanted to add to what the Hon Chairman said as an Hon Member of the Committee.
Mr Speaker 11:15 a.m.
Very well.
Mr Anyimadu-Antwi 11:15 a.m.
The basis for protecting intellectual property stems from the fact that we have three kinds of property. We have movable property, immovable property and intellectual property. If somebody takes a movable property, we should go to the extent of protecting that property and criminalise any person taking something that does not belong to him, which we call stealing.
In the same way, we have this word which has to do with somebody taking another person's property or riding on the back of --
Mr Speaker 11:15 a.m.
Hon Member, the point being made by the Hon Member for Old Tafo, for which I called the Hon Chairman of the Committee to respond to, is with regard to a statement in the Committee's Report to the effect that, the Committee was informed that piracy of trademarks is on the increase and he wanted to know the basis -- he wanted an empirical evidence. That is the case as a matter of fact.
That is why I called the Hon Chairman of the Committee and he has accepted that they need to give more information on that and he believes that the Hon Member for Old Tafo's comment was in good faith.
Now, you are going in a different direction; so, I am not too sure --
Papa Owusu-Ankomah 11:15 a.m.
Mr Speaker, well, that is his area of specialty, that is why he thought he was at the Kwame Nkrumah University of Science and Technology (KNUST) Faculty of Law. -- [Laughter]
Mr Speaker 11:15 a.m.
I see.
So, the issue is what informed the Committee to make that statement? That is the crux of the matter.
Mr Bagbin 11:15 a.m.
Mr Speaker, rightly so, because he is a practitioner. He is not only a holder of a second degree in the area of trademarks, he also practises in Ghana and he has handled a number of cases in court. So, he was very helpful at the committee level. For example, our attention was drawn to sound. And if one looks at a number of service providers in the telecom industry - they use some sound such that when one hears it, one knows that this is Tigo or Vodafone and some of them are now getting some similarities.
Dr A. A. Osei 11:15 a.m.
Mr Speaker, even though the Hon Chairman and my good Friend has not, as of yet, adequately addressed my concern, I was enjoying his lecture. I am being very much educated.
I crave your indulgence that you give him an opportunity to educate us further.
Mr Speaker 11:15 a.m.
Yes, but in the process, he should establish the fact that it is on the increase.
Dr A. A. Osei 11:15 a.m.
Mr Speaker, I think he was laying the ground.
Mr Speaker 11:15 a.m.
Very well.
Hon Member?
MrAnyimaduAntwi 11:25 a.m.
Mr Speaker, let me go straight to the point. I tried to lay the foundation. But a quick response to my Hon Senior's question is that, what he is asking for is all around us. Now, we have heard several times, it came in the newspaper that clothes were being burnt. Apparently, these are clothes that other people had tried to portray that it belonged to them when they could not. You go to the market and see Binatone for fridges, fans and whatnot and then another person puts on the market Banatone. Instead of “bina” he makes it “bana”.
White Western House for air- conditioners, they just change the spelling and it sounds like whitewashing Western House. Timex watch and then the spelling is changed and instead of “x” it becomes “s”. So, these are around us when you go to the market. It is more than evidently proved that they are on the rise in the market.
Mr Speaker 11:25 a.m.
Last comment and then I will call on the Attorney-General and Minister for Justice to wind up if she intends to.
Dr Matthew O. Prempeh (NPP -- Manhyia) 11:25 a.m.
Mr Speaker, in commenting or adding to the Report just presented, there are four types of Intellectual Property Rights -- trademarks, patents, copyrights, designs. These are the four main ones.
Mr Speaker, I know that the Attorney- General's Department has got a series of laws on all these -- Copyright Law, Intellectual Property and now, we are
modernising the Patent Law. But Mr Speaker, I would implore the Attorney- General and Minister for Justice, that the vital service Ghanaians need is the enforcement of the law and the intellectuals more knowledgeable in this area, should protect Ghanaian intellectual property owners. The fact that we have these things in our laws, bind us locally to international standards.
There are no two ways about that. But when you come to Ghana and you have inventors, makers of music products, logos and they cannot find the right legal brains to help them in registering their intellectual property, that is where I have a problem. So, as they bring this law through the help of the Ghana Legal Council, they should make sure that there are a lot of lawyers who can help these Ghanaian intellectuals to register their products under these various categories.
Thank you, Mr Speaker.
Mr Speaker 11:25 a.m.
Hon Attorney-General and Minister for Justice, do you intend winding up?
Mrs Appiah-Opong 11:25 a.m.
Mr Speaker, I would like to thank Hon Members for the useful contributions they have made to the passage of this Bill. Indeed, as the Hon Matthew Prempeh stated, enforcement is very important and we take it very serious.
What happens is that, a lot of the lawyers these days do take extra courses and I think intellectual property is actually taught in the schools now and so, there are lawyers who practise it but we will take it more serious at the Ghana School of law and at the university level.
Mr Speaker 11:25 a.m.
Hon Members, that brings us to the end of the debate.
Question put and Motion agreed to.
The Trademarks (Amendment) Bill, 2013 was accordingly read a Second time.
Dr Kunbuor 11:25 a.m.
Mr Speaker, if we could take item 5.
Mr Speaker 11:25 a.m.
Very well.
BILLS -- CONSIDERATION 11:25 a.m.
STAGE 11:25 a.m.
Mr Speaker 11:25 a.m.
Hon Chairman, I know there is no amendment standing in your name, but I would want to get some clarification from the Committee.
The first amendment stands in the name of the Hon Afenyo-Markin and they are talking about second clause 1. How many clauses should we have in a Bill? Did that come to the attention of the Committee and how did you address it? By our standard practice, a Bill must have --
Mr Alban S. K. Bagbin 11:25 a.m.
Mr Speaker, I am just trying to get a copy of the Bill. I have so many Bills, as you know, before the House and the files are quite huge. So, I am locating my copy of the Bill.
We have as many as 22 clauses in the Bill but the amendments are as many as --
Mr Speaker 11:25 a.m.
Hon Chairman, I have to put the Question. I find it difficult in proposing the Question to the House. This is because we have three clause 1 in the Bill if you look at page two of the Bill. That is why, the first amendment standing in the name of Hon Afenyo-Markin, says “2nd clause 1”. How can I put a Question on “2nd clause 1”? So, I want to know whether that has come to the notice of the Committee and how did you address it, because I cannot put that Question.
Mr Bagbin 11:35 a.m.
Mr Speaker, I have seen a typographical error even on the Order Paper and also in the Bill. The first one is not the clause 1. The first one is like an introduction to clause 1 but they made that one and then the clause 1 they also made it 1, so, we have two 1s and that is what --
Mr Speaker 11:35 a.m.
For me to put the proper Question, we have to delete one of those 1s on page 2, so that I can put the proper Question.
Mr Bagbin 11:35 a.m.
Mr Speaker, I said that the first one in the Bill is a typographical error. That is the introduction; that should not be clause 1. The clause 1 is the second one. So, the subheading “Section 1 of Act 749 amended” -- So, the Anti-Money Laundering Act 2008, Act 749 referred to as the principal enactment is amended by the substitution for section 1 of - Then clause 1, which is Money Laundering.
Mr Speaker 11:35 a.m.
Hon Members, so what we have for clause 1 is the one directly under section 1 of Act 749 amended. That is the proper one. So, you delete the other one. But the second one, which is under money laundering, should be deleted and then we have the one there standing.
When we come to page 3, the (1) there should be deleted, completed and it should be (2). Then when we come to under section 6, the (2) there should be (3) and it follows in that order.
Hon Members, I want us to get this before I start putting the Question.
Hon Chairman, are you with me?
Mr Bagbin 11:35 a.m.
That is so, Mr Speaker.
Mr Speaker 11:35 a.m.
So, the second one at page 2 should not be there at all. We should just have the one there, which is in bracket. So, that is how I am going to proceed.
Clause 1 -- Section 1 of Act 749 amended
Mr Alexander Afenyo-Markin 11:35 a.m.
Mr Speaker, I beg to move, clause 1 section 1, be amended and it should read:
“A person commits an offence --
Mr Speaker 11:35 a.m.
Hon Member, move your amendment first and then give us the rendition.
Mr Afenyo-Markin 11:35 a.m.
Mr Speaker, I beg to move, clause 1 subclause 1, line 2 before “knows” we insert “reasonably” and before property, we insert “the”.
Mr Speaker 11:35 a.m.
So, how would the new rendition sound?
Mr Afenyo-Markin 11:35 a.m.
Mr Speaker, it would read:
“A person commits an offence of money laundering if the person knows or ought to have reasonably known that the property is, or forms part of the proceeds of unlawful activity and the person;
(a) converts, conceals, disguises or transfers the property;
(b) conceals or disguises the unlawful origin, disposition, movement or ownership of right with respect to the property; or
(c) acquires, uses or takes possession of the property.”
Mr Speaker 11:35 a.m.
Any comment?
Mr Bagbin 11:35 a.m.
Mr Speaker, this is a proposed amendment from an Hon Member which is not in accord with the position taken by the Committee and we
do not support that position. He consulted me on that and I advised him to bring it to the floor for the House to take a decision. This is because the Hon Member is a practitioner in the field. But Mr Speaker, the clause as proposed says that:
“A person commits an offence of money laundering if the person knows or ought to have known that property is, or forms part of the proceeds of unlawful activity and that person …”
So, it is not only knowing, but you ought to have known. Now, the Hon Member is trying to insert “reasonably” to say “ought to have reasonably known”. That is introducing an element which would be very difficult for one to prove. Mr Speaker, “ought to have reasonably known”, that is -- usually, we say “ought to know”. You know or you ought to have known, but not ought to have reasonably known. So, we are opposed to the proposed amendment.
Mr Afenyo-Markin 11:35 a.m.
Mr Speaker, the main reason for proposing this amendment is to give it an objective test to the understanding of the provision. Mr Speaker, if we just maintain “ought to have known” we are trying to say that if somebody, ordinarily, in the course of doing business, transacts business with someone in another jurisdiction and it later comes up that, that person acquires that property there unlawfully, that innocent party who acquired property through regular business would have committed an offence.
Mr Speaker, that would be very perilous. And I am saying that if we qualify it properly, then reasonably, it is expected that before you enter into a business relationship with anybody outside the
jurisdiction, you would have done your due diligence. Else, we would be seizing people's property, people would have done business, they get the money -- How would we know, in Ghana, if somebody is exporting mangoes or soya beans or anything else and then the person receiving the goods in say, United States of America, (USA) and is engaged in narcotic business and has acquired some money which he is using to pay for it, it is unlawful or tainted?
So, if we put in the reasonability test, then we are being objective, so that the person who did not know after his due diligence would not suffer. The way it is put, it is becoming a challenge in practice in our courts, where people are becoming more or less victims, because they have received funds and it is deemed to be tainted. So, the essence of it is to qualify it and make it objective.
Mr Speaker 11:35 a.m.
Hon Member, but you know that when it comes to anti-money laundering, the standard is very high You know that?
If you have been in that practice, you should have known. I am talking from experience. In certain jurisdictions, they even put the application of the onus of proof on the suspect or the accused person. In certain jurisdictions like the United States of America, under their RICO Legislation --
Mr Afenyo-Markin 11:35 a.m.
Mr Speaker, with the greatest respect, currently, before the burden shifts, I have looked at the USA law and the United Kingdom (UK) law on anti-money laundering. Mr Speaker, a threshold has to be met and that threshold must be positive evidence that indeed, something unlawful has happened.
Mr Speaker 11:35 a.m.
That is why we have there “the person ought to have known”. So, with that one, it is the prosecution that has to lead evidence that you ought to have known.
Mr Afenyo-Markin 11:35 a.m.
Mr Speaker, with the greatest respect, that is why I am qualifying it. This is because Mr Speaker, if we keep it at large, then “ought to have known” becomes a subjective test.
I am saying that, the fact that money laundering has become a worry; it does not also mean that we should sacrifice the criminal jurisprudence practice in our country. There is a standard. Mr Speaker, in our case, it has even been enshrined in our Constitution, in article 19(10). It is very clear. We have it in our Constitution, Mr Speaker, and with your permission, I may want to refer to --
Mr Speaker, with your kind leave, I would want to refer to article 19(10) of our Constitution. Mr Speaker, first article 19 (2) and with your permission, I beg to quote:
“A person charged with a criminal offence shall --
(a) in the case of an offence other than high treason or treason, the punishment --”
Mr Speaker 11:45 a.m.
Which article are you referring to?
Mr Afenyo-Markin 11:45 a.m.
Mr Speaker, I am referring to article 19 --
Mr Speaker 11:45 a.m.
Which clause?
Mr Afenyo-Markin 11:45 a.m.
Mr Speaker, article 19 (2) (c )
“be presumed to be innocent until it is proved or has pleaded guilty;”
Mr Speaker, if you come to article 19 (10) and I beg to quote 11:45 a.m.
“No person who is tr ied for a criminal offence shall be compelled to give evidence at the trial.”
So, Mr Speaker, upon a proper interpretation of the provisions, the understanding here is that, no matter the crime, the standard of proof and the burden is very objective and it is clearly laid out. If we say that somebody received money from his regular transaction and he “ought to have known”. So, subjectively that the person he dealt with acquired the money, which has been used to pay him was got through some unlawful activity and that would be very unelastic. Mr Speaker, if today --
Mr Speaker 11:45 a.m.
Hon Member, we are at the Consideration Stage, so, make your point and let me take other Hon Members' views and I will put the Question or we defer it, depending on the sense of the House. So, I want to take other views on the matter.
Mr Bernard Ahiafor 11:45 a.m.
Thank you Mr Speaker for the opportunity.
Mr Speaker, the word “reasonably” would not be applicable to the section. This is because Mr Speaker, who then determines what is reasonable and what standard are we going to use? The word “reasonable” is very relative. So, it should not be applicable here. The two amendments being proposed should not be applicable to the section. The section should remain the way it is without any amendment.
MrAmoako-Attah 11:45 a.m.
Mr Speaker, in my respectful view, I think the amendment being proposed is superfluous. It is superfluous in the sense that, if the Bill says that and I am quoting in part: “… if the person knows or ought to have known” -- Mr Speaker, “ought” here and the word “reasonable” -- ought and reasonable, in my view, are synonymous and this is in the realm of crime and even in a court of trial, as Mr Speaker said, the standard of proof is very high.
It means that the circumstantial evidence would have been taken into consideration and if the law says that the person ought to have known, it means that it covers all areas of reasonableness and to introduce the word “reasonable” again Mr Speaker, is superfluous.
Mr Joseph Y. Chireh 11:45 a.m.
Mr Speaker, the argument about introducing reasonable- ness to this amendment is something that is difficult to understand. But when my Hon Colleague says that article 19 of the Constitution is the basis of his argument, I do not think it is fair, because “ought to have known” -- So, whoever says that you “ought to have known”, must provide the evidence.
Mr Speaker 11:45 a.m.
Absolutely!
Mr Chireh 11:45 a.m.
Yes,if the person says that you ought to have known, he must provide evidence on how you should have known. So, that in itself does not presume to be guilt by anybody. No! You need to show and if I am charged with the offence and you are saying I should have known, then the person should tell you how I ought to have known. Where is the evidence that shows that?
So, I believe that the argument really should not be about article 19, this is because article 19 is very clear as it is provided for, but the way it is put should
be -- the person who is making the allegation should be the one proving that.
Thank you very much.
Mr W.O. Boafo 11:45 a.m.
Mr Speaker, it appears that a number of voices are advocating for prosecutorial stance, but my Hon Colleague is trying to help the defence counsel in this case. He is trying to make a way for a defence when a person is arrested. But it appears majority of Hon Members are pushing for prosecutorial stance but this House should consider the defence aspect also.
Mr Speaker 11:45 a.m.
Hon Boafo, but the burden is on the prosecution to prove that you know or you ought to have known -- they have to lead evidence to establish that. When they establish that standard before it would shift to the accused person. If it does not then - if he is unable to convince the court, the matter ends there.
Mr A. S. K. Bagbin 11:45 a.m.
Mr Speaker, clearly, the burden even in this case has not shifted. It is still with the prosecution and it is like unlawful receiving. The prosecution has to lead evidence to show dishonestly or unlawful receiving and if they are able to prove this by looking at the price as against the item or goods and with the knowledge that we all know in the market, if the person is offering it to you at this price, you ought to have known that there is something fishy about it.
If I bring you a Mercedes Benz car and I am selling it to you at GH¢2,000.00, you should be suspicious, there should be something ringing a bell in your head that, no, there is something wrong with this.But if you just rush and buy it and say that oh, I am selling it to you and you just bought it at that price, the prosecution would be leading these circumstantial evidence to try and prove that even if you say you do not know, you ought to have
Mr A. S. K. Bagbin 11:45 a.m.


known based on these indicators and that is exactly what we are talking about and the property is also defined. This is because it is talking about property and the property is defined in the Bill.

Mr Speaker, when you use the phrase, “ought to have known”, as the Hon Member rightly observed, if you use reasonably again, then why do you use “ought”? You cannot say “ought” to have reasonably known. I have not come across that phrase at all anywhere in any legal document. I have not.
Mr Speaker 11:45 a.m.
Hon Members, the picture is getting clearer. Indeed, the contribution of the Hon Member for Atiwa West has clarified a lot of points which were re-enforced by the Chairman of the Committee on this matter.
Dr A. A. Osei 11:45 a.m.
Mr Speaker, I am glad that you are taking the view of a non - lawyer. Mr Speaker, I was persuaded by the brilliant argument from the Hon Member for Atiwa West until the Chairman of the Committee spoke.

Mr Speaker, so, if the Hon Member can take out that example, we shall be persuaded. But my son, there is nothing wrong with that.
rose
Mr Speaker 11:45 a.m.
Hon Minority Leader, I think I have taken enough points on this.
Mr Osei Kyei-Mensah-Bonsu 11:55 a.m.
Mr Speaker, I initially thought that my Hon Colleague was making a good point. As for the intervention that the introduction of the word “reasonable” would make it difficult for anybody to prove or whether it is a new thing, I have my doubts. This is because the Constitution itself at various places uses that qualifier of “reasonable suspicion” for instance, and so on.
Mr Speaker 11:55 a.m.
The point the Hon Member is making is using the “reasonable” and the “ought” simultaneously.
Mr Kyei-Mensah-Bonsu 11:55 a.m.
I am not talking about what the Hon Chairman has stated. I am talking about the early intervention, which suggested that it is strange to have that qualifier and I am saying that the Constitution even applies that language.
For instance, article 14 (1) (g) and with your indulgence, I beg to quote:
“Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law --
(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.”
Who establishes the “reasonable suspicion”? I am talking about the earlier intervention from the Member for --
Mr Speaker 11:55 a.m.
Hon Minority Leader, as for “reasonable”, it is in a lot of legal documents.
Mr Kyei-Mensah-Bonsu 11:55 a.m.
Absolutely! That is why I found it strange when the defence was that it cannot be used. But I am persuaded by the intervention of the Hon Member from Atiwa West.
Mr Speaker, I think we can go on that line. Indeed, we are not in the first instance talking about “a person having reasonable cause to know”; if that construction had been the initial one, then perhaps, we would have found a way to have this construct that he is proposing even though that construction is not even right.
But to the extent that it does not begin with “a person having reasonable cause to know”, that later addition will not be necessary. So, I think we can go on the persuasive force given by the Hon Member for Atiwa West and amplified by the Chairman of the Committee.
Mr Speaker 11:55 a.m.
Very well.
Hon Attorney-General and Minister for Justice, do you want to say something?
Mr Marietta Appiah-Opong 11:55 a.m.
No, Mr Speaker.
Mr Speaker 11:55 a.m.
Very well.
Hon Alexander Afenyo-Markin, do you want to withdraw your amendment or I should put the Question? You have got the sense of the House.
Mr Afenyo-Markin 11:55 a.m.
Mr Speaker, under the overwhelming circumstance, I withdraw that aspect for now and would come back later.
Mr Speaker 11:55 a.m.
Very well.
Mr Afenyo-Markin 11:55 a.m.
Mr Speaker, I believe the “the” is maintained?
Mr Speaker 11:55 a.m.
The point is that “property” has been defined, so there is no need to put the “the”. That is the point the Chairman of the Committee is making.
Mr Kyei-Mensah-Bonsu 11:55 a.m.
Mr Speaker, I do not know whether for that particular matter, we may have to look at it again. The introduction of the word “the”, because of course, the subclause (a) uses the word “the” to qualify “the property”. I am looking at the introduction of “property” in the first instance.
“A person commits an offence of money laundering if the person knows or ought to have known that property is or forms part of the proceeds of unlawful activity and the person …….”
I am thinking that there should be a better description when the word “property” is used in the first instance. This is because we are talking about a particular property which explains why in (a) we are talking about “the property”. We are talking about a particular property in the first place and that is why in line (a) sub-clause (a), we are referring to “the property”. So, it must be given some qualification.
I do not agree to the use of the word “the” anyway in that instance. That is not what I am saying --
Mr Speaker 11:55 a.m.
Hon Minority Leader, have you looked at the definition of “property” at page 24 of the Bill? -- [Pause.]
Mr Kyei-Mensah-Bonsu 11:55 a.m.
Mr Speaker, I have looked at it, it does not change what I am trying to --
Mr Speaker 11:55 a.m.
So, what are you suggesting?
Mr Kyei-Mensah-Bonsu 11:55 a.m.
Mr Speaker, what I am saying is, there should be some description of the first “property”. I do not know whether we can say “a person commits an offence of money laundering

if the person knows or ought to have known…” The way we speak in Ghana, when we have an introduction of the word “that” we pause after “that” and it is made to appear as if “that” qualifies the “property”. It does not. It is “ought to have known that property” and so, we are talking about a particular “property”. I do not know whether it is grammatical to say “a property” otherwise, I would say “a particular property”.
Mr Bagbin 11:55 a.m.
Mr Speaker, just to clear the doubt of my Hon Minority Leader. The subject matter in the clause “is person” not “property”. That is why in reading the clause, we say “a person commits an offence of money laundering if the person” so that one, you use “the person” because you have already referred to “a person”. But now, if the person knows or ought to have known that “property is” “not the property is” you have not referred to any earlier “property” -- [Interruptions.]
Mr Speaker 11:55 a.m.
Hon Members, once Hon Afenyo-Markin has withdrawn his amendment, let us think through it and then we can come back if there is need for us to, so that we can make progress. I think we have spent some time on this clause.
Clause 1 ordered to stand part of the Bill.
Hon Members, let us discuss this further and if at the Second Consideration Stage, we would want to have it polished, we can address that particular issue. This is because the Minority Leader is coming out with a certain point which he himself has not fully developed, but he is trying
to make a point that I thought we should take a look at, but it would be difficult for us to do that now on the floor of the House.
Mr Boafo 11:55 a.m.
Mr Speaker, I do not know whether you are referring to the clause 2 or your revised clause 2.
Mr Speaker 11:55 a.m.
Hon Members, that is why at the beginning, I clarified the position. I said we had only one clause 1, that is the very first one.
So, the second one is deleted completely; the clause 2 that I have just called is the third one which is at page (3).
So, the second one, at page 2, is deleted; it is a typographical error. The first one which is the third one is also deleted, that is now 2. Then the 2 at page 3 now becomes the 3 and I said it follows in that order. So, the clause 2 that I have called now is at page 3. I am responding to the question posed by Hon W. O. Boafo and that is why I am referring to the page 3 of the Bill, not the amendment.
Clause 2 -- Section 5 of Act 749 amended.
Mr Bagbin 12:05 p.m.
Mr Speaker, I beg to move, clause 2, subclause (1), paragraph (b), line 1, delete “on request”.
Mr Speaker 12:05 p.m.
Hon Chairman, let me get this point right. Does your amendment here tally with my amendment? If it does not, then there is going to be a problem. This is because my clause 2 now is the one as clause 1 at page 3 of the Bill. I would want us to be on the same page; so, it is very important, otherwise, we would be putting the wrong Question. Section (5) of Act 749 amended.
Mr Kyei-Mensah-Bonsu 12:05 p.m.
Mr Speaker, while we are still sorting it out, that is, the chronology of the clauses, may I draw your attention to page 2 of the amendment Bill before us, that is in the Bill, the second one: Clause 1 (b) “conceals or disguises unlawful origin—” What does the “unlawful origin” there means? One conceals or disguises the origin or dispossessing movement or ownership of right with respect to the property?
Do we have to qualify the origin as unlawful when we know what the money laundering activity is? I think that it should simply read: “conceals or disguises the origin” and not the “unlawful origin.”
Mr Speaker 12:05 p.m.
Yes, I think you are right.
Chairman of the Committee, have you got it now?
Mr Bagbin 12:05 p.m.
Mr Speaker, I went through my Report and the amendments we attached to the Report; that is not what is properly captured on the Order Paper. That is why we have the problem. This is because our Report refers to clause 3. Clause 3, section (6) of this amendment proposed, subclause (1), paragraph (b), line (1), before “take” delete “on request”. That is not what is captured on the Order Paper and that is what is leading to the --
Mr Speaker 12:05 p.m.
Which means that it tallies with mine; your amendment in your Report now tallies with mine. This is because after the amendment, the clause 3 that you have there is actually clause 3, which by the proper arrangement, is the clause 3 here.
Mr Bagbin 12:05 p.m.
Yes. So, Mr Speaker, it should not now be clause 2; it refers to
clause 3 -- amendment proposed -- subclause-- it is amending section (6) of Act 740, not section --
Mr Speaker 12:05 p.m.
So, it should be clause
3?
Mr Bagbin 12:05 p.m.
That is so, Mr Speaker.
Mr Speaker 12:05 p.m.
Very well.
I would want to find out whether there is any amendment on clause 2?
Mr Bagbin 12:05 p.m.
None proposed, Mr Speaker.
Mr Speaker 12:05 p.m.
Hon Members, do we go and file the thing properly because this is a very important legislation?
Papa Owusu-Ankomah 12:05 p.m.
Mr Speaker, I believe we should correct the Bill itself. The problem is also from the Bill itself, because section 5 of Act 749 amended, it says (1), but it should be clause 2 of this Bill. Then section (6) of Act 749 amended, should be clause 3. I do not know, probably --
Mr Speaker 12:05 p.m.
Hon Member for Sekondi, I agree with you, that is why I devoted some time to clarifying that position right from the beginning. This is because when I saw Hon Afenyo- Markin's amendment, I realised that if you say 2nd clause 1, we cannot have more than clause 1 in a particular Bill. That was why I took some time to clarify that position, which we did. Then they would follow chronologically in that order.
So, we have one, then the one at page 3 becomes 2 and the 2 becomes 3 in that order. So, if you agree, then what it would mean is that, the amendment must tally with the new -- Now, the Chairman is telling us that his amendment is in clause 6, which is the proper one. But the Committee should have guided us from
Papa Owusu-Ankomah 12:05 p.m.
Mr Speaker, I agree with you in principle. But I would suggest that the Chairman of the Committee and the Attorney-General and Minister for Justice should liaise and agree that this is what it has to be and then, we correct the Order Paper.
Mr Bagbin 12:05 p.m.
Mr Speaker, we had already agreed and we submitted them according to what Mr Speaker proposed. But it is not properly captured in the Order Paper. This is because in our Report, it stands as clause 3 -- the Report we submitted. So, we had agreed and corrected them and submitted them as corrected, but it is not captured in the Order Paper. So, it is not that we have agreed.
Papa Owusu-Ankomah 12:15 p.m.
Mr Speaker, while I agree with him, I am wondering whether in the Report, the Committee proposed that the clauses as appearing
in the Bill be amended as he has stated. I do not think that the Committee has done that in the Report.
Mr Speaker 12:15 p.m.
I understand that they have not done that but in their amendments, they have taken note of it.
Papa Owusu-Ankomah 12:15 p.m.
Then, your suggestion is properly the best so that we can follow the discussion as we move along.
As you know, Mr Speaker, when it comes to Consideration Stage, only a few Hon Members would be here throughout. So, we have Hon Members coming in and going out and then they get confused. So, if we could amend the Order Paper to reflect the decision, it would let us advance rather quickly.
Dr Prempeh 12:15 p.m.
Mr Speaker, amending -- I was getting confused, even trying to follow you listening to the Hon Chairman of the Committee and the Hon Minority Leader.
Mr Speaker, it is -- The best word is “Nyamaa”.
Mr Speaker 12:15 p.m.
Hon Member, you are out of order.
We are trying to solve a problem.
Dr Prempeh 12:15 p.m.
Mr Speaker, in giving your orders to solve the problem for today, please, could you tell the Table Office to arrange it properly tomorrow, so that --
Mr Speaker 12:15 p.m.
That is precisely what we have agreed on and what the Hon Member for Sekondi has said.
Mr Bagbin 12:15 p.m.
Mr Speaker, I take a strong objection to the use of the word “Nyamaa” -- [Laughter] -- This is because my Hon Colleague was not listening to the points that were raised. The Report of the Committee noted the problems as identified in the Bill and has proposed the amendments accordingly. So, the Report is correct. Now, that has not been properly captured in the Order Paper.
Now, the use of word “Nyamaa” as known in ordinary parlance --
rose
Mr Speaker 12:15 p.m.
Hon Members, I am not going to take any arguments on this matter but I am going to direct --
Hon Deputy Minority Leader?
Mr Dominic B. A. Nitiwul 12:15 p.m.
Mr Speaker, what do the rules say; the rules are very clear. If somebody uses a word that is not English, it is up to that person to translate it. The Hon Member has not done any translation; he has not given us the meaning of the word and the Hon Chairman is objecting to it. What is the meaning of the word “Nyamaa”?
Mr Speaker 12:15 p.m.
Hon Member, what is the meaning of the word “Nyamaa”?
Dr Prempeh 12:15 p.m.
Mr Speaker, the word “Nyamaa” means “disorder” or “confusion” in this matter.
Mr Speaker 12:15 p.m.
Withdraw the use of the word “Nyamaa”.
I am not saying you should withdraw the definition but the word “Nyamaa”.
Dr Prempeh 12:15 p.m.
Mr Speaker, on a light side, if I withdraw the word “Nyamaa” would I withdraw the definition too?
Mr Speaker 12:15 p.m.
I said, withdraw the word “Nyamaa”.
Dr Prempeh 12:15 p.m.
I withdraw the word “Nyamaa”.
Mr Speaker 12:15 p.m.
Hon Members, I think the Consideration Stage is the most important part of our law-making process. This is because at the end of the day, it is that which would appear in the law that we are making and we should be very clear
exactly, what we are doing. So, I think we should defer this matter, get the Table Office to clean the Order Paper to be in tandem with the Committee's recom- mendation, so that tomorrow, we can proceed in that direction.
Mr William O. Boafo 12:15 p.m.
Mr Speaker, I have been listening attentively to hear from you that you are also directing that the various clauses in the Bill should be re-numbered according to your observation, so that it appears in the Votes and Proceedings.
Mr Speaker 12:15 p.m.
Very well.
If that will not take time because you are the Hon Ranking Member -- Are you the Hon Ranking Member of the Committee?
Mr Boafo 12:15 p.m.
No, Mr Speaker.
Mr Speaker 12:15 p.m.
Sorry. But I have been informed that this is a very important piece of legislation. So, I would find out if it is possible. But we will try and start the process; if they can get the Bill properly numbered and printed, that would not be out of place. But we would continue as we wait for the corrected version to be brought, so that we make progress in that direction.
Hon Deputy Majority Leader?
Mr Alfred K. Agbesi 12:15 p.m.
Mr Speaker, as many as seven Committees have been advertised to meet after adjournment.
At this stage, I beg to move, that the House do adjourn till tomorrow at 10.00 in the forenoon.
Mr Nitiwul 12:15 p.m.
Mr Speaker, even before I second the Motion, I would want to make some proposals.
Mr Speaker 12:15 p.m.
Well, winnowing is a standard practice, so, I have no objection to that.
Mr Nitiwul 12:15 p.m.
Mr Speaker, subject to the direction from the Chair, I would second the Motion.
Mr Bagbin 12:15 p.m.
Mr Speaker, these are amendments from the Committee and these are clearly discussed with the proposers of the Bill and we both agree on these amendments. That is why they are proposed by the Committee. Most of the time, when we are doing winnowing, there are amendments from Hon Members other than the Hon Chairman.
When the Hon Chairman proposes an amendment, it is from the Committee. I do not know how that could be winnowed again by another Committee. It is not necessary.
I early on proposed for an adjournment because it was proper for them to rectify the error before we proceed with the amendments. -- [Interruption.] -- He did not second, he was raising another issue.
Mr Speaker 12:15 p.m.
He had seconded.
Hon Members, we have to move the Motion again. Comedy of errors, eh.
Mr Alfred K. Agbesi 12:15 p.m.
Mr Speaker, I beg to move, subject to your direction the House do adjourn till tomorrow at 10.00 o'clock in the forenoon.
Mr Nitiwul 12:15 p.m.
Mr Speaker, I do not know but I would seek your guidance before seconding the Motion.
I would have thought that he would withdraw the original Motion that he proposed because that Motion still stands. So, if he does not withdraw it --
Mr Speaker 12:15 p.m.
Hon Members, the original Motion which was moved and seconded was wrong. It is contrary to the practice of the House because the Mace has to be standing upright at the time the Motion was moved. It was not standing upright at that time and my attention was drawn to it by the Hon Minority Leader. That is why I called that the Motion be moved again.
So, the first Motion was moved contrary to the practice of the House and that has cured it. So, Hon Deputy Minority Leader, second it now.
Mr Dominic B. A. Nitiwul 12:15 p.m.
Mr Speaker, now that the Mace is standing upright, in fact, I would not use the term erect, I beg to second the Motion.
Question put and Motion agreed to.
Mr Speaker 12:15 p.m.
Hon Members, this Bill is very important, that is why I have a number of Statements but I did not take them today, so that we can clear it. Leadership knows what I am talking about. So, I would want the Hon Chairman of the Committee and Leadership to make sure that we have this Bill prepared, so that we can take it tomorrow.
Thank you very much.
ADJOURNMENT 12:15 p.m.
  • The House was accordingly adjourned at 12.25 p.m. till Thursday, 13th February, 2014 at 10.00 a.m.