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Friday, 16 December 2022 08:21

Lecture delivered by the Special Prosecutor at the "Annual Ethics Lecture" by the Ghana Institution of Engineering (GhIE) on 15 December 2022 at the Engineering Centre in Accra Featured

TOPIC: QUALITY INFRASTRUCTURE & ENGINEERING SERVICES: THE ENGINEER, POLITICIAN AND ETHICAL BEHAVIOUR

The quest for quality infrastructure and engineering services in our drive toward development should be an engaging concern for all. For perhaps, it is upon that consideration that we may forge ourselves decent existence. The engineer and the politician are ever confronted with moral choices in their professional discourses and in their interaction with the public. The engineer interfaces with his colleagues, other professionals, his client, his workmen and the public. The politician is exposed to and has to contend with everyone and he has to decide on the distribution of resources to all sectors of the human situation – which are always competing for attention – to assure development.

Beyond private treaties and engagements and into the public space of the delivery of expected quality infrastructure, the engineer and the politician are linked together as if by destiny. The politician decides on which public projects and works to undertake and the locations to situate them. The engineer designs the projects, supervises their construction and certifies work for payment. They are both problem solvers in this regard. Therefore, it seems to me, that the output of engineers and the vocation of politicians affect public health and public wellbeing in very grave terms, on every account – on the reckoning that their often-joint conscious exertions are what should assure us the gratification of quality infrastructure.      

Not too infrequently, the public decries the state, longevity and quality of our infrastructure. Why do we not have the best infrastructure as they do in some places – the citizen ponders. Why are our roads so bad – the motorist asks. This stretch of road was constructed just two years ago, why has it developed craters for potholes already – he quizzes further. Whoever designed this roundabout or intersection does certainly live on another planet – a by-standing observer muses. Whose idea was it to design and fit such a closed up claustrophobic casket for an elevator in such a huge and busy public building – a visitor fumes. Whoever designed the approaches and assesses to this building is certainly not a friend of disabled persons – another visitor contemplates. We hear like complaints daily. We see the sources of the grumbling all around us. 

We may attribute some of these defaults to the poverty question. Afterall, if we had the wherewithal, we could insist on the very best and we would not have to sort of beat back on the designs and construction of projects. We may not be inclined to output and accept the not-so-very best. We may link some of the sources of the public consternation to the maintenance question; the lack of it, I mean – which in itself is likely an offshoot of the poverty question. Or may we trace it to our collective attitudes, if I may ask Some of it may be traced to deficiencies in regulations, procedures, administration of instructions – including lack of internal control mechanisms. Then again, there is also the sceptre of our culture and traditions.

We may characterise our insufficiencies in every permutable likely cause. It is the human situation that poor infrastructure begets musings of dismay. When we are dejected, everything and everyone is fair game for blame-allocation. There is another cause of the complaints, which is said to be a well-guarded domain of politicians and engineers. It may be mere perception and thus an unfair tag. It so happens, that too often, persons who condemn the purported conduct of others are unable to shore up their allegations with probative evidence of the actual occurrence of the act complained of.

However, from where I sit as the Special Prosecutor of the Republic, it cannot be all perception. It is also experiential. And this is the problem. I wish it remained in the province of perception. That would make my work easier. And I would have been left with nothing to do except to explain quietly to the complainants that the reality is not what they think it is. And that it is only a bad dream they may wake up from, if they chose to. Unhappily, there is some substance in the allegations I receive and we cannot overlook them. It is the elephant in the room we must acknowledge and address. I am referring to lack of ethicalness – a strong foundation corruption.

Perhaps we cannot describe the malaise of corruption better than as captured by our own Kofi Annan in his Foreword on the General Assembly Resolution adopting the United Nations Convention Against Corruption that “[C]orruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish.”

In our context, lack of ethicalness begets morally opprobrious conduct. It engenders greed and individual interests. It encourages the setting aside of regulations. It lowers standards. It dilutes the skill and care required in the design and execution of projects. And sadly, it breeds corrupt-collusion between the politician and the engineer through the inordinate batter of promise-for-promise bribery and illicit enrichment to our collective impairment. In my estimation, ethics, in the general scheme of affairs, describes a system of principles that affect how people make decisions and how they lead their lives. Ethics are a product of several considerations, spanning from religion to the professions. On all accounts, we may characterize ethics as moral philosophy.

Admittedly, morality can be a very vexed question and an unruly horse – as there is no agreed form of morality among humans. Therefore, I use the term in the very limited sense of making a choice out of two or more probable courses of action.

Certainly, questions of ethics do not arise if the actor was placed in a situation in which he did not have a choice in respect of his actions. This may arise in cases of insurmountable duress – like the gunman situation writ-large – “Your money or your life!” Another illustration may be, where a person is faced with imminent death upon a deadly attack by an adversary, and that person kills the attacker in self-defence. Here, the person attacked had no choice and he could not be expected to engage in detached reflection in the face of an uplifted knife or gun.

In these cases, the person is pinned down to choose between life or death. This is no choice at all. And this is not the situation I am referring to. On another score, I am not referring to ethical dilemmas – in which a person is confronted with a difficult situation between two courses of action, each of which produces morally conflicting results.  

In our context, I am referring to where a person is not faced with threat to life or limb, and is not faced with choosing between two evils. I am referring to where a person is at liberty to choose between one of at least two courses of action – one producing joyless results (except to the actor), while the other produces agreeable results. I am referring to a choice between good and bad. As I intimated earlier, there are several forms of ethics. I would like to dwell on two – as they appear to me to be the most appropriate in our circumstances.

The first is termed deontological ethics – that is, duty-based ethics or ethics of moral obligations. This stands for the making of a choice from competing courses of action out of a believe that the choice we are making is the right course and thereby we act accordingly.

The second is ethics of consequentialism. This posits opting for the course of action that produces the best overall consequences or results. These two constructs have their obvious utility. The first contemplates the rightness of a choice. And the second looks to the best results. I propose that we conjoin these two forms of ethics to guide our conduct.

While contemplating the rightness of our actions, we must contemporaneously reckon their consequences. It seems to me, that it is only when we structure the question of ethics on these joint considerations that we may assure ourselves quality infrastructure and engineering services.

The question then becomes – Am I doing this because I believe that it is the right thing to do, and will it produce the best results or consequences? 

Throughout the development of the law and ethical conduct regulating engineering services, two legal principles have stood out in mastery. The first is the neighbour principle and the other is the rescue principle. Both principles highlight the gravity of the consequences of our actions in interrelated ways of vividly reminding us of the adverse effects our overt actions and inactions may perpetrate.

Let me illustrate.

On the evening of 26 August 1928, two women went to a café in Paisley in Scotland and ordered drinks. One of the women, who was a shop assistant but described as a pauper, was named Mrs. May M’Alister or Donoghue. She asked for a mix of ice cream and ginger beer. It was paid for by her friend. The owner of the café brought over a tumbler of ice cream and ginger beer contained in an opaque brown bottle. The women proceeded to have their drinks. At some point, May’s friend poured the remaining beer onto the ice cream and they discovered a decomposed snail floating out of the bottle and onto the ice cream. May claimed that she fell ill from the sight of the decomposed snail and that she also suffered abdominal pains.

She decided to sue someone for her trouble. She instituted legal proceedings against the café owner and the manufacturer of the beer, Mr. David Stevenson. She later abandoned the suit against the café owner but continued the action against the manufacturer of the beer – and the case has become famously known as Donoghue v. Stevenson.

 

Let us leave Mrs. Donoghue and Mr. Stevenson for the time being. We will turn back to them shortly.

I now invite you to go back in time with me again. This time, to 1921 and across the Atlantic to the State of New York in the United States. The International Railway Company operated an electric train between the cities of Buffalo and Niagara Falls. There was a point on the line where an overhead crossing carried the tracks above the central New York line toward Eerie in Pennsylvania. A gradual incline upwards over the trestle raised the tracks to a height of 25 feet. A turn was then made to the left at an angle of 64 to 84 degrees. After making this turn, the lines passed over a bridge, which was about 150 feet long from one abutment to the other. Then came a turn to the right at about the same angle down the same kind of incline to grade. Above the trestles, the tracks were laid on ties, unguarded at the ends. There was an overhang of the train cars, which was accentuated at curves. On the bridge, a narrow footpath ran between the tracks, and beyond the line of overhang, there were tie rods and a protecting rail.

Our subject here is Mr. Wagner. He boarded the train with his cousin at a station near the bottom of one of the trestles. Other passengers who entered at the same time had filled the platform and blocked admission to the aisle. The platform was fitted with doors, but the conductor left them open. At a point, the train was moving at a constant speed between 6 and 8 miles an hour as it turned the curve. There was a violent lurch and Mr. Wagner’s cousin was thrown out, near the point where the trestle changed to a bridge. A cry was raised – “Man overboard”. The train went on across the bridge, and stopped near the foot of the incline. Night had fallen by the time. Mr. Wagner walked along the trestle for about a distance of 445 feet looking for his cousin. He arrived at the bridge, where he thought he would find his cousin’s body. He claimed he was asked to go there by the conductor. He also claimed the conductor followed him with a candle. The conductor denied both claims. Several other persons went beneath the trestle and they soon discovered the body of Mr. Wagner’s cousin under the bridge. As they stood there, Mr. Wagner’s body struck the ground beside them. It turned out that, upon reaching the bridge he had found his cousin’s hat on a beam, but nothing else. He could not see much as it was dark. He missed his footing and fell through to the ground.

Mr. Wagner sued the railway company for the injury he suffered upon falling through to the ground. This is the suit that became famously known as Wagner v. International Railway Company. The case travelled to the Court of Appeal of the State of New York, the highest court in that state.

Now let us return to Mrs. Donoghue in Scotland. She had several hurdles to scale over owing to the prevailing legal thought at the time. Chief of the seemingly unsurmountable blocks was that she could not maintain an action against the manufacturer of the beer, for breach of contract since she did not pay for the drink. Recall that her friend paid for the drinks. Then again, it was very difficult to establish the facts and to prove that Mr. Stevenson had knowingly put out a dangerous product. Further, the prevailing precedent at the time required her to prove that she had actually been injured by the breach of duty owed to her by Stevenson to take reasonable care to avoid such injury. 

Her lawyer argued that Stevenson owed a duty of care to his client and that he had breached that duty by failing to ensure a system that would churn out clean bottles on the production line, especially as he knew that the bottles would be put on the market containing a substance for human consumption. Further, he contended that Mrs. Donoghue had no reason to suspect that the opaque bottle contained nothing more than pure ginger beer. Naturally, Mr. Stevenson denied the allegations, which his lawyer described as grossly exaggerated and he contended that any illness suffered by Mrs. Donoghue was a result of a pre-existing illness. Recall that she was described as a pauper. 

Much like Mrs. Donoghue in Scotland, Mr. Wagner also faced a seemingly insurmountable legal obstacle in New York. Mind you, unlike his cousin, he did not fall from the train. He fell from the bridge while on foot. Thus, it appeared that he had no remedy for his injuries unless it could be established that he had been invited by the conductor to go upon the bridge, and also that the conductor followed with him a source of light.

The court in both cases intrinsically recognised the engineering default and product defect as arising from conduct which did not take into consideration their consequences or outcomes.      

Mrs. Donoghue’s case travelled through the Scottish courts till it got to the British House of Lords. Mr. Stevenson died before the House of Lords decided the case. By a three to two majority, the House of Lords, on 26 May 1932, decided in favour of Mrs. Donoghue that Mr. Stevenson indeed had a duty of care toward her and that that duty had been breached. His estate paid her 200 pounds.

Lord Atkin, one of their Lordships in the majority, whose judgment has become celebrated through generations of lawyers and non-lawyers alike, opined that:

The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 

He continued:

If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

This has become known as the neighbour principle.

In respect of Mr. Wagner, in a judgment delivered on 22 November 1921, Justice Cardozo laid down what has become known as the rescue principle. He observed that:       

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path…The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had. 

I daresay state that these cases show that in the ordinary circumstances of mankind, the effect and consequences of our actions are bound to impact the public to indescribable degrees 

Therefore, in addressing our minds to our acts that are called into question, we should consider whether it would probably cause or contribute to cause an unhappy event. 

When we fail to advert our minds to the causal link or nexus between our conduct and the commonweal of society, and the unhappy turn of events our actions may produce, we leave a trail of adversely affected persons – whose only recourse may be to resort to legal proceedings. However, we must bear in mind, as the illustrated cases show, that not every unfortunate result of our actions is redressable by law. And even when the law steps in, in an attempt not to leave a wrong without a remedy, the cure either comes too late in the day and is never ever able to revert the adversely affected person to the position he was in before the unhappy event ensued.

For instance, if by my unethical conduct as an engineer, I cause someone injury and he loses a leg through amputation, the law may offer him a recompense of monetary damages. However, he can never be restored to his former self. And he will be left with all the time in the world to think about his lost limb – money nothwithstanding. 

The lesson is – we must not be reckless as to the consequences of our actions. If you weigh the options by engaging in reasonable caution and observation, and you recognise it as obvious that there will be serious risk of the production of unhappy results in respect of a course of action, and you still opt for that path, then you are clearly reckless as to the consequences of your actions – and this is the height of unethical conduct. And this is epitomised by permitting a politician and a contractor to influence your decision – in that reprehensible promise-for-promise live-and-let-live bribery regime.

The Professional Engineering Practice of the Ghana Institution of Engineering, which contains the code of conduct of members of the Institution, has the objective of ensuring that engineering practice in the country conforms to established technical, environmental, and safety standards. 

It calls on the members to discharge their duties with fidelity to the public and to uphold honesty, justice and courtesy that form a moral philosophy that constitute the foundation of ethics. However, it is very thin on issues on corruption. The Institution may want to take a look at that. Nurture the abhorrence of corruption and corruption-related acts in-house. Lest there is a clear and present danger that the members may fall foul of the law. Guard jealously against external influences. And have little patience for fraud, corruption, bribery and sharp practice.    

To the politician, what do I tell the citizen who ponders why we not have the best infrastructure as they do in some places? 

To all of us, what do I tell the motorist who asks why are our roads are so bad;  to the motorist who quizzes why a stretch of road was constructed just two years ago, but it has developed craters for potholes already; to observing bystander who muses about the interstellar planetary origins of the designer of that roundabout or intersection; to the visitor who fumes about whose idea it was to design and fit that closed up claustrophobic casket for an elevator in that huge and busy public building; and to the other visitor who contemplates the friendliness or otherwise of the person who designed the approaches and assesses to that building? 

May the discontentment lessen. May the tenure and tone of the conversation change.

 

KISSI AGYEBENG

Special Prosecutor

15 December 2022       

Last modified on Friday, 16 December 2022 08:46

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