Law Lecturer Takes Apart Judge's Decision

"Judgment Was Structurally Defective"- Dr Atuguba

"I am tempted to believe that in a case that involves a relatively new criminal provision that has not been tested much in court, a case that is high profile because it involves a sitting Member of Parliament and one that has huge political undertones, there should a more extensive judgment than the four pages the judge produced."

The above submission was made by Dr. Raymond A. Atuguba of the Faculty of Law, University of Ghana in a Citi Fm panel discussion program recently. He also had the opportunity to further expatiate on Joy Fm?s Newsfile program the same day.

Making an examination of the structure of the judgment read by Justice S.T. Farkye, Dr. Atuguba explained that the whole judgment was contained in 17 pages. Page 1 is the cover page, page 17 is the signature of the judge. That leaves 15 pages. Pages 2-4 is a reproduction of the charges against the accused persons, that leaves 12 pages. Page 5-8 is evidence of the Prosecution Witnesses, which leaves 8 pages. Of the 8 pages, 4 are a reproduction of letters written by the 1st and 2nd accused persons.

?That leaves 4 pages for the case of the accused, assessments of the cases of both sides, legal analysis, legal reasons, judgment and sentence,? Dr Atuguba said.

According to him, such analysis cannot under any circumstances fit into four A-4 pages. He said that because of the structural defects of the judgment, certain critical issues were not dealt with therein.

The different figures quoted as the quantum of loss- $250,000, $400,000, to him represents an example of the way some critical issues were left hanging. He also cited others such as: The confusion as to the subject matter for which payments were made, which constitutes financial loss: study proposal, or study, or study report? The absence of the evidence of a critical party to the transactions -Dr. Boadu

The different figures quoted as the quantum of loss- $250,000, $400,000

Absence of the justification for the sentence of 10 years imposed on the 1st accused

In the view of Dr. Raymond Atuguba, there is a certain pretentiousness in Ghanaian politics that the people of Ghana must name and shame.

?At independence we inherited a system of political organisation that requires political parties and competitive politics. Since independence we have sought inspiration from and drunk deep from the English and American political systems of party political contestation. We have gone as far as to entrench party politics in our Constitution as the acceptable mode of competing for, capturing, and using state power,? he stated.

He said that party politics as a way of governance has its advantages and disadvantages- one key disadvantage being the fact that as a mechanism for governance it is divisive in nature.

?This divisiveness involves not too good methods of destroying the power base, support base, resources base and public credibility of the opposing political party,? he explained.

According to the law lecturer, the Watergate Scandal, the Clinton-Lewinsky affair, the imprisonment of Nationalist leaders by the colonial government in Ghana and the various public order and illicit gin laws, the imprisonment of United Party/National Liberation Movement supporters by President Nkrumah under the Preventive Detention Act of 1959 and various other sedition laws, the imprisonment of pro-opposition journalists by the Provisional National Defence Council (PNDC) and the National Democratic Congress (NDC) governments under criminal libel laws, the imprisonment of NDC sympathisers by the New Patriotic Party (NPP) under laws of ?causing financial loss to the state? are all examples of how party politics operates when one chooses it as the mechanism for governance.

"Why are we all pretending that we do not know this and that this is not what is happening," he queried.

On how the nation can resolve this, Dr. Atuguba had this to say:

?Officials in the second rung of government must resist the inappropriate use of state institutions of governance for illegitimate purposes. I pray for the day when state Attorneys will refuse to prosecute on this ground. I pray for the day when the police will refuse to arrest on this ground.?

On the law of willfully causing financial loss, Dr Atuguba averred that a broad interpretation of article 19 of the 1992 Constitution together with other Human Rights laws that operate in this country will not allow the law on causing financial loss to the state to stand:

?The law is too broad, ill-defined. It can be very very capriously and selectively applied,? he said.

He said that section 179 A of the Criminal Code, 1960 (Act 29) is on Causing loss, damage or injury to property (and was inserted by Act 458, s. 3).

Also, Act 458- The Criminal Code (Amendment) Act, 199 does not provide any definitions of the key terms used in the law loss, financial loss, etc.

In his opinion too, the interpretation section of the Criminal Code that is Section 1 of Act 29 as variously amended does not define.

?Because this provision is loosely defined, we need to take its full import from how the judges have interpreted it,? he stated.

?In the Ibrahim Adam case, the court held that the offence would lie when a financial loss of WHATEVER KIND was occasioned to the state by any willful or reckless act. The loss might occur because the act done yielded no result at all and therefore produced a total loss, or else because a benefit produced was at a significantly higher cost than was dictated by the circumstances. This is too loose,? he affirmed.

Dr Raymond A. Atuguba was of the firm conviction that the beauty of Ghana ?s is that the nation possesses the best Constitution in the world. He believes that it is very possible to use the beautiful provisions in the constitution to keep unacceptable politics at bay.

Articles 1 (1), 2 (2), 14, 19, 23, 190, 191, 199 and 296 are provisions that, in his view, can go a long way to achieve this goal.