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Feature Article of Thursday, 26 April 2012

Columnist: Coffie, Emmanuel Dela

Digesting the decisions of Justice ....

Patricia Quansah, Essel Mensahand Charles Quist

I have listened to the arguments of the three judges who sat on the Kennedy Agyapong case. Not only am I stunned by the oversimplification of judicial precedent; I also lament over the untenable rationalization of the ethno – centric hate pronouncements of the MP, and an attempt to make a mockery of our jurisprudence.

Kennedy Agyapong, who on Oman FM, his own radio station usurped the powers of the sitting president to unconstitutionally declare war, urged Asantes to annihilate all Ewes and Gas living in the Ashanti region by attacking them with machetes and cutlasses. He further warned that any security personnel who would try to keep the peace in the Ashanti Region will be lynched. “Today, I declare war in this country, Gbevlo-Lartey and his people, IGP should know this. Voltarians in the Ashanti Region will not be spared. If anyone touches you, butcher him with a cutlass”, Kennedy Agyapong said.

The police took up the challenge he threw to them and arrested him on the charges of treason felony, terrorism and attempted genocide.

He was sent to a district magistrate court for a committal of trial and to secure remand, while investigations continued as the law demands, and the to the amusement of all, magistrate, Patricia Quansah, who was supposed to handle the case, however, declined to proceed, stating, her jurisdiction does not extend to cases of such magnitude.

The lawyers of Kennedy Agyapong in an attempt to seek bail for their client went to court on ex-parte motion, andfiled a habeas corpus application. The judge made the habeas corpus order, and adjourned the matter for the state to appear and produce the accused in 4 days. Then again, he made an order for the accused to be released on the grounds of ill health. According to Justice Essel Mensah he granted the bail because he used his discretion of court rules and the provision of a medical report on the health condition of the MP, who is said to be diabetic. The state then proceeded to the high court and filed fresh charges of treason felony, attempted genocide and terrorism. The court presided over by Justice Charles Quist granted him bail on a non bailable offence, and also committed him to a bond of good behaviour until the final determination of the case. There are many questions that demand answers. First of all, the state did not go to the magistrate court for a trial, but for committal procedure, and the magistrate erred in law to have declined sitting on the matter.

Secondly, whether Mr. Kennedy Agyapong, the arraigned suspect, was a diabetic, or not, is inconsequential to the evidence before the court. He was arraigned before Justice Charles Quist’s court on specific criminal charges. From the article, the accused was “arraigned, charged with treason felony, attempted genocide and terrorism.”

Thirdly, from the little I know about criminal law, indicted suspects are brought to court not for the fun of it. They are indicted to stand trial because there is prima facie evidence against them. Why would a qualified judge, then, grant bail to Mr Kennedy Agyapong knowing very well that the offence to which he is being charged is non-bailable? Since when did judges start granting bail on habeas corpus application? A writ of habeas corpus is a judicial mandate requiring that a prisoner be brought before the court to determine whether the state has the right to continue detaining him or her. On which grounds did Justice Georgina Wood's appointed judge grant the bail?

These developments we see in the nation’s judiciary are a microcosm of an enduring muck that is slowly tarnishing the reputation of the nation’s finest judges.

And again, does the high court have the power to grant bail at all in non-bailable offences, on the grounds that the facts do not match the offence? Are we going to grant bail to suspected drug barons and hardened criminals on the basis of ill health?

A judge who becomes oblivious to the values of justice, and devalues his/her position as an impartial arbiter of fact must be treated with utter contempt.

A case is brought before a judge for adjudication, and the judge does not even look at the merits and the demerits of the charges brought up against the accused person, but goes ahead and virtually declare judgment advising that the prosecution should prefer lesser charges against the accused person and grants bail on a non bailable offence. How can this happen in democracy? Isn’t the judge supposed to allow the prosecution to provide evidence in support of the charges? How can the judge simply look at the charges and determine the outcome of the evidence? How can you do that? How can a court do that?

Doesn’t procedural law set rules on how cases must be conducted in a competent court for the sake of justice? Are these barefaced injustices in the judiciary a new alternative for a few corrupt and godless judges to deny the nation’s indigent their right to universal social justice?

For how long are we going to allow a few Judges to exploit the independence of the judiciary to forestall remedial interventions to pervert justice?

The genocidal statements and the subsequent promotion of hate for Gas and Ewes by Kennedy Agyapong is not only indefensible but criminal, and the court cannot be seen to be promoting such unguarded statements.

Have we not learnt any lesson from the Rwandan genocide? Does Ghana have the resources and the expertise to defuse the prospect of our nation becoming another Rwanda? The questions are endless, and the potential consequences for our inactions are horrific, to say the least. In my opinion, a token justice that is delivered with the view to moderate societal revulsion against a serious criminal action is no justice at all. As a nation, we cannot allow this miscarriage of justice to become part of our nation’s jurisprudential philosophy. As history has it, the subversion of the law to appease certain backdoor-politicians is not healthy for our nation’s democratic credentials and international image. Was this what we pay our judges for? To suborn criminality, by perverting the rule of law?

We must act now or never. I shall be back!

Dela Coffie www.delacoffie.wordpress.com

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