By Kofi Ata, Cambridge, UK

In previous articles on two of the three charges (attempt to commit genocide and terrorism), preferred against Kennedy Agyapong, the beleaguered NPP MP, I concluded in both articles that, he was not guilty as charged and explained why. From some of the comments posted especially, on the second article (see Ghanaweb April 28, 2012, “Terrorism Charges Against Agyapong, Guilty or Not Guilty?”), I got the impression that some readers assumed I have proven the accused innocent of all charges. I am sorry if the two articles gave that erroneous impression. Having concluded that he was not guilty of the two charges against him, but taking into consideration the seriousness of what he said, I now want to consider what crime, if any, he committed.

Kennedy Agypong is on record to have called on the Asante ethnic group in Kumasi to attack Ewes and Gas. In the first article (see Ghanaweb, April 24, 2012, “Agyapong’s Genocide and Terrorism Charges: Bizarre or Ludicrous?”), I posited that the state should have charged him with inciting ethnic hatred instead of attempting to commit genocide. This was because the state would be unable to prove the two charges for reasons given in the aforementioned articles. The state is more likely to secure a conviction on a charge of incitement to racial discrimination, racism or ethnic hatred for a number of reasons that I will return to later. Please note that discrimination is more related to the provision of goods and services but not exclusively.

It will be helpful to briefly consider what a crime of racism, racial or ethnic hatred is or what is commonly known as racism or racial discrimination (tribalism in Ghana)? In this article I will use race or ethnicity instead of tribe or tribalism because in my view tribe is derogatory. Without attempting a sociological definition of racism or bore readers with Kantian or Hegelian epistemology of the term, let me just say that racism in simple terms is prejudice against others on the grounds of race including skin colour, ethnicity, nationality/citizenship or national origins. Any act or behaviour which has a detrimental effect on or less favourable treatment towards an individual or groups of individuals on the grounds of race is racism, racial discrimination, racial or ethnic hatred. Sometimes, what is diplomatically referred to as nationalism could be plain racism dressed up as patriotism. Racism or (racial) discrimination can be direct or indirect.

Direct racism or (racial) discrimination occurs when one is treated less favourably than s/he would have been treated but for his/her race (skin colour, ethnicity, nationality/citizenship or national origin). For example, if one is denied a job because of his/her race despite the fact that s/he was the best qualified candidate and performed well if not better than other candidates throughout the recruitment processes. This is not to suggest that the best qualified and best performed candidate is always offered the role. Indirect racism or racial discrimination on the other hand, occurs when a general condition is applied equally to all and sundry but has disproportional detrimental effect on particular racial groups. For example, the number of those from a particular or some racial groups who are able to meet the condition is considerably lower compared to all other racial groups. In other words, the effect of a general condition that appears to be fair and equitable on its face value is disproportionately less favourable on or more detrimental to some racial groups. A typical example used to be a condition that to join state security agencies such the police, military or Fire Service, one must be of a prescribed minimum height, size and weight. Though this condition applies to all racial groups, it was established that Chinese and other Asians are by nature and on average shorter and smaller (in size and weight) than other racial groups. Therefore, the number of Chinese and Asians who were able to meet the criteria compared to other racial groups (Blacks and Europeans) was relatively smaller. This is indirect racism or racial discrimination and that was why in the UK this condition was abolished as it was found to be unlawful indirect discrimination on the grounds of race.

From the above, Agyapong’s call on one ethnic group to attack two ethnic groups was less favourable treatment on or detrimental to the targeted ethnic groups and therefore a crime of incitement to racial or ethnic hatred. It was and still racist.

Among the reasons why the charge of a crime of incitement to ethnic hatred is more likely to result in conviction is that, in discrimination cases or racism, the intention or motive of the perpetrator/s is irrelevant. Rather, it is the effect or impact of the act/s, or omission/s being complained of, which is relevant. This is because often, people who are accused of discrimination or racism would use the excuse that, “they did not mean or intend to discriminate or cause offense” as a defence. The perpetrator’s intentions and motives do not provide a defence in law for the act/s and omission/s of discrimination, racism or ethnic hatred. That is why I am of the strong view that the state should charge Kennedy Agyapong with the crime of inciting racism, racial or ethnic hatred.

Another reason is that the offense of discrimination and the crime of racism or ethnic hatred is a matter of fact. Aggyapong said what he is being accused of and there is no dispute about that. He cannot deny what he said and even if he tries to manufacture or justify what he said, it does not change anything. The fact still remains that he incited Asantes in Kumasi against Ewes and Gas.

Irrespective of his intentions or motives for saying what he said, there was an effect or there were effects. Among the effects was that most right thinking and rational Ghanaians were offended by his action and or omission, especially Asantes, Ewes and Gas. The three ethnic groups, particularly the last two might have panicked, felt threatened and unsecured. It also raised political tension among political parties in particular and Ghanaians in general. Finally, the incitement, had it been carried out could have had the potential to result in ethnic cleansing, genocide, national conflict and a threat to national and international peace and security.

Lastly, the state does not have to prove that Agyapong had planned or organised in advance to incite ethnic hatred as would be required in the charges of attempting to commit genocide and terrorism. For the above reasons, I am persuaded beyond any reasonable doubt that, Kennedy Agyapong is committed a crime of gargantuan incitement to ethnic hatred.

It is interesting how Ken Agaypong later claimed that he had or has a wife and children of Ewe ethnic origin and could therefore not be racist towards or discriminate against Ewes. I heard this empty excuse time and time again here in the UK when I worked with a Race Equality NGO. Often, white racists will use their family connections with minority ethnic groups to claim that they are not racists because a member of their family is either of African, Asian, Caribbean or Jewish origin. There is an Englishman, a racist to the core and an alleged member of the racist party (British National Party), who refused to let his white daughter marry her black boyfriend, yet adores his granddaughter from that relationship. Whenever he is accused of being a racist, his response is, “how can I be a racist when I have a lovely granddaughter whose father is black?” That is what we call “in denial”. Racists and bigots always deny that they are. Perhaps, Kennedy Agyapong needs reminding that in both Rwanda and former Yugoslavia family members from intra-ethnic and interethnic relationships were forced to kill each other just because they belonged to the wrong ethnic group. Even if Agyapong’s DNA test proved that he is genetically or biologically hundred percent of Ewe or Ga ethnic origin, what he said still constitutes a crime of incitement to ethnic hatred.

Some black people and people from minority ethnic origins sometimes mistakenly assume or believe that a black person cannot be racist towards or discriminate against another black person or a white person. That belief does not hold water because race discrimination or racism is simply not only a matter of skin colour but more complex and dynamic than meets the eye. Above all, it includes ethnicity, nationality/citizenship or national origin. Racism or racial discrimination is also about control over political, economic and cultural power. That means one Ghanaian can be racist towards or discriminate on racial grounds against another Ghanaian in spite of the fact that, both are black in skin colour, of the same nationality/citizenship or national origin, if the two are from different ethnic groups in Ghana.

The Agyapong case is becoming a nightmare for the Executive and an embarrassment to Ghana. Media reports indicate that a group calling itself “the Coalition for the International Criminal Court” has petitioned the International Criminal Court (ICC) in the Hague to take up the matter. Members of this group are not only ignorant of ICC’s mandate and its rules of engagement but they are national saboteurs and a disgrace to Ghana. Their misguided action means Ghana is a failed state, unable or unwilling to prosecute Agyapong for whatever reason/s. It also means the group has no confidence in the prosecuting authority, the Judiciary or both. From the wrong charges preferred against the accused and judging from the number of cases that the Attorney General’s Department has lost, it is highly probable that this group has lost faith in state prosecutors’ ability to do justice to the case.

What is the rationale behind petitioning the ICC when the state has already charged the accused with the same crime to be considered by the ICC? Their aim might have been to embarrass Kennedy Agyapong as an individual and the NPP collectively but unintentionally, it’s Ghana’s reputation as a true sovereign state that has been tarnished and ridiculed before the international community as well as brought the Judiciary into disrepute. In fact, the action could be contempt of court and a sign of the level of indiscipline and disorder in Ghana. Kennedy Agyapong committed a very serious crime that Ghanaians should not play politics with but attach the seriousness it deserves in addressing it without fear or favour. What has been happening is a joke, comedy and perhaps unlawful both under national and international jurisprudence.

Kofi Ata, Cambridge, UK