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Opinions of Thursday, 7 April 2011

Columnist: Ata, Kofi

“Corpus delicti”, The Ya Na Murder Trlal, Did the Judge Err?

By Kofi Ata, Cambridge, UK

This is my second article on a High Court judgement in Ghana but as I am not a lawyer, I plead with readers, especially lawyers and legal experts to forgive me if I make a fool of myself by displaying total ignorance of the law. I am referring to the ruling of Justice E K Ayebi on the recent Ya Na murder trial that has become something of a circus between the two main political parties in Ghana. Another judgement by a High Court has become fodder for NDC and NPP and again, those who are not interested in the development of the judiciary, case law, the rule of law and the independence of the judiciary are making unwarranted noises, to the extent that some who disagree with the judgement have taken the law into their own hands and resorted to destruction of property, the loss of another life and demonstrations, whilst on the other hand, those who agree with the judgement celebrated. This judgement is equally as important as the Ghana@50 ruling for a number reasons and the fact that dissenters have cited it as part of their argument.

The beauty of law, its interpretation and application is that, there are often differences of opinion among law professionals (lawyers, solicitors, barristers, judges, academics, etc) on the same matter. Even amongst the Justices of the highest courts globally (Supreme Courts), there are differences of opinions on cases that come before them. It is therefore not strange that in Ghana some people disagree with the ruling of a High Court Judge. Indeed, there is nothing wrong with that and it is rational. What concerns me is that, in today’s Ghana, there appears to be “two beasts” either seeking or competing to destroy Ghana. The damaging competition between NDC and NPP is such that every fabric of Ghanaian society is being affected by their rivalry. I do appreciate that the judiciary, particularly Supreme Courts are not devoid of political ideology (for example, conservatives and liberals in the US), but I cannot understand why a High Court judgement on a murder case is interpreted purely along party political lines. This is purely because the two beasts have aligned themselves to a chieftaincy dispute between two factions within the same family. The consequence is that the need for the critical thinking and analyses that Ghanaians ought to subject the judgement to is forgotten and lost within the political and judicial discourse. Instead, and again, another important court ruling has become a political football between NDC and NPP.

I am non-partisan and owe no allegiance to neither NDC nor NPP. I am only interested in the development of case law and the rule of law in Ghana. This article on the High Court ruling of the Ya Na murder trial is therefore, my contribution to the debate. I must also point out that my knowledge on the Ya Na case is limited and mainly from the Ghanaian media and since the Ghanaian media is equally partisan and repel or attract stories according to their political colours, my understanding may be weak or could even be tainted but I will try my best to be level headed and objective in my analysis.

My starting point is the Wuaku Commission’s report and I am assuming that readers are aware of what the Wuaku Commission was about. For reasons of time and space, I will limit myself to only the relevant sections. According to the Executive Summary of the Commission’s report presented on 6 November 2002, the Terms of Reference among others included and I quote , “ On 25 April 2002, His Excellency President John Agyekum Kufuor, by Constitutional Instrument 2002 (C.I. 36), appointed this Commission of Inquiry, chaired by Justice I N K Wauku, to investigate the Yendi disturbances on 25th to 27th March 2002, identify the perpetrators and make appropriate recommendations to the President” The underlined section is very important and readers should take note of it as I will return to it later. Did the Commission achieve this objective? It appears it did, as it is reflected in the White Paper issued by the then government on some of the recommendations of the Commission. Again, I quote the relevant sections. “Government accepts the general findings and recommendations of the Commission and many of its specific findings and recommendations. The principal recommendations is that Yidana Sugri and Iddrisu Gyamfo, who were seen on 27 March 2002 holding several parts of the late Ya-Na Yakubu Andani II, soon after his killing and who should be presumed to have killed the Ya-Na should be prosecuted for murder”.

So, why despite the above recommendation, no one has been successfully prosecuted for the murder of the late Ya Na? Because the above statement is not a finding of fact. The Commission only drew inference from the fact that the two might have murdered the late Ya Na if they were seen holding several parts of the murdered Ya Na. I have no problem with why the two are still free men because their guilt has not been proven beyond any reasonable doubt, the test for murder cases. At best, they are only suspects. However, I am extremely worried that the two are still free because in every civilised society, where the rule of law has no political colours, the possession of human body parts by an adult of sound mind would have triggered an arrest and investigations into how, why, who and where the person got the body parts. I have no doubt in my mind that such investigations, even if it did not lead to a charge of murder may answer the question of how, why, etc did the individual came to possess human body parts and possibly the identity of the deceased. Such individual if proven not to have anything with the death of the person could probably end up being sanctioned under a Mental Health Act and taken into a mental institution.

If the two gentlemen’s guilty is not proven beyond reasonable doubt, is their innocence established? This is a difficult question to answer because the law says, “not guilty until proven otherwise”. I believe that in this particular case, circumstantial evidence could have been relied on to press at least, a lesser charge (not necessarily murder, let alone the murder of the Ya Na) against the two men for the possession of human body parts. I assume that since the two men are free, Ghanaian society accepts that it is legal to possess human body parts. In other words, Ghana is saying to the rest of the world that, possessing body parts is normal in Ghana. What does that say about our criminal justice agencies including the judicial system?

Another shocking aspect of why no one has been successfully held responsible for the murder of the Ya Na is the following from the White Paper on the Commission’s recommendation and again, I quote. “As far as other specific recommendations are concerned the Attorney General will issues instructions to the Police to use the evidence before the Commission and its findings as the basis for further investigations and appropriate action. It will be necessary for instance in the case of the recommendation for the prosecution of Iddrisu Iddi, Mbadugu, the former Zalinko Lana, Shani Moro and Muhammudu Abdulai for conspiracy to murder, to undertake further investigations. Iddrisu Iddi is so implicated because it was to him that Iddrisu Gyamfo presented the decapitated head of the Yan-Na, and the other two because of evidence that they pulled the body of the Ya-Na to the kraal before it was burnt. Further investigations are necessary in this area and the Police will be instructed”.

From the above, it appears what happened was despicable and barbaric acts beyond humanity’s comprehension. So why are those mentioned above still free? If an adult of sound mind presented the decapitated head of a human being to another person, even if they were not directly responsible for the death and the barbaric act of decapitation, how on earth are they free? Perhaps, further police investigations did not substantiate the findings of the Commission’s report. If that is the case, did the Commission do efficient and competent job? I am tempted to suspect that the findings of the Commission could be questionable. What is my evidence?

I mentioned earlier that I will return to the Terms of Reference of the Commission. The Commission was set up “to investigate the Yendi disturbances on 25th to 27th March 2002, identify the perpetrators and make appropriate recommendations to the President”. Please note the word “disturbances”. It is very significant because, the Commission for some strange reason wrongly concluded that the disturbances in Yendi that led to the murder of the Ya Na and others was “an act of war”. “Having considered the totality of the evidence before the Commission, we have come to the conclusion that events that took place in Yendi on 25th, 26th and 27th March 2002 were criminal act of an act of war fought between Gates for which individuals from both Gates are blameable”. This conclusion seriously dents the legal and security advice (if any) received by the Commission. War is a legal term and I expected a retired Justice of the Supreme Court of Ghana and Chairman of the Commission to be aware of this. This conclusion is not only bizarre but also superfluous and ludicrous for reasons that I now consider.

War in any part of Ghana can be declared only by the Commander in Chief, the President. It involves military operations and armed conflict between opposing forces of nations and states as well as within one state (civil war). It normally involves the seizure, capture and control of territory or government or both. According to case law, whether a state of hostilities amounts to war is a question of fact in each case (Kawasaki Kisen v Bantham Steamships [No.2] [1939] 2 KB 544). What happened in Yendi cannot be described as war. It was not even an ethnic conflict but simply, a family feud between two lines/brothers or gates as is known in Yendi that got out of control. The mere fact that arms were used in the feud does not constitute war. The Commission’s conclusion was wrong in law, has no legal or moral basis and therefore its reliance by any party to the case is unsafe. Sadly, both the defence counsel and the Judge relied on this conclusion as contained in a statement at the Judicial Service website “The court said it was established that the incident was a war between the Abudu and the Andani Gates ........” Who established that the incident was a war? The Wauku Commission. There was never a war. Assuming that there was war in Yendi, what prevented the state from investigating and prosecuting those who committed war crimes? Even war is prosecuted under laws either according to international law or national laws and any act that cannot be reasonable, proportional and justifiable can be considered as war crime.

The Commission also concluded that the some action/s and omission/s of the then Northern Region Minister amounted to criminal negligence and recommended that the minister be charged for criminal negligence, when in fact, there is no such crime on Ghana’s statute books. One wonders where a Commission chaired by a retired Justice of the Supreme Court arrived at such conclusions. The first trial in 2003 of the two people who were charged for murder of the Ya Na on the recommendation of the Commission was also unsuccessful and the accused were discharged. Did the Commission simply cover up what happened? I have no evidence to suggest that but certainly, some of its conclusions were problematic and that is why I suspect it did not do a good job.

That leads me to the Ghana@50 judgement. In that trial, Justice Marfo ruled that, “we should not use reports of Commissions of Inquiries in matters before a court in the Ghana@50 trial”. He further ruled that those who appeared before Presidential Commissions are granted immunity from prosecution and that was why he dismissed the case against the accused. So why were the accused in the Ya Na tried in the first place if they appeared before the Wauku Commission? Were they not covered by the immunity granted under Presidential Commissions? Why did Justice Ayebi rely on the Wauku Commission’s report when Justice Marfo ruled to the contrary? Was the Wauku Commission not a Presidential Commission of Inquiry? Is the judiciary in Ghana consistent with their decisions, the interpretation and application of the law? Since the Ghana@50 ruling has not been reversed by a higher court through an appeal, it is the authority (case law) on such matters until it is reversed and therefore Justice Ayebi should not have department from it without giving any reason. That may explain (but does not justify), the accusation that the judiciary in Ghana could be biased. In my view both the state and the judiciary are inconsistent on such matters. The use of the Wauku Commission report by the Justice Ayebi makes the Justice Marfo ruling on Ghana@50 unsafe. Again, it is also inconsistent for the President to announce another Presidential Commission to look into the disappearance of cocaine in Ghana, unless there is no intention to prosecute if adverse findings are made against certain individuals who appear before the proposed commission. It is even alleged that the President claims that the Ghana@50 ruling was the reason why he did not set up a Presidential Commission of Inquiry into the Yedi disturbance as promised in the NDC Manifesto.

Now, let me consider the subject of “corpus delicti” that the Judge relied upon to acquit the accused. According to the Judge, “it was not sufficient for the prosecution to say that the Ya-Na was dead and leave it at that. Even the investigation was not conclusive of the identity of the charred body, nor was a DNA examination conducted to prove that the body was that of the Ya-Na.” “In law, the death of the Ya-Na must be proven beyond reasonable doubt, especially in the absence of a death certificate. If the prosecution failed to prove that the charred remains were the body of the Ya-Na, then the accused persons could not be held liable for the death of the Ya-Na,”. The defence lead counsel also stated, “there was an embarrassing failure by one of the prosecution witnesses—Brigadier Wadorani, who was tasked to conduct the autopsy—to state in clear, unambiguous terms that the charred body was that of the Ya-Na. Instead, he told the court that the charred body was that of a male adult but could not state as a matter of fact whether it was that of the Ya-Na”.

Is the public being misled by this reliance on proving beyond reasonable doubt that the body was that of Ya Na? My understanding of the legal phrase corpus delicti refers to the English common law body of evidence which establish a crime to mean an actual human body in murder cases. The rule was finally abolished for practical purposes in the UK with the 1954 case of Michail Onufrejczyk who appealed against his murder conviction without the body of the deceased, (Stanislaw Sykut) being found. His appeal was dismissed by the Lord Chief Justice, Lord Goddard, who said in his judgement "things had moved on since the days of the Camden Wonder" (murder case in the 1660s) and also … it is equally clear that the fact of death, like any other fact, can be proved by circumstantial evidence, that is to say, evidence of facts which lead to one conclusion, provided that the jury are satisfied and are warned that it must lead to one conclusion only”. Am I misapplying or misinterpreting corpus delicti? Probably, with the presence of a body it must be proven beyond reasonable doubt that the body is that of the murdered person, but I am yet to be persuaded on the test of proof beyond reasonable doubt in establishing that the body was that of the Ya Na. I am still of the view that despite the failure of the prosecution team to provide DNA evidence that the body was that of Ya Na, circumstantial evidence should have “led to one conclusion only” as Lord Goddard concluded in his ruling. In my opinion, the reliance of prove beyond reasonable doubt of the body is not safe.

This case cannot be analysed without the role played by the State Prosecution. Though I am not a lawyer or an investigator, the abysmal and amateurish approach by the prosecution team is to say the least, absurd. How could they justify not cross checking witness statements of their own witnesses with what they said at the Wauku Commission? If the witnesses claimed that, what were recorded by the Commission were not what they said when they appeared before the Commission in 2002, why did the prosecution fail to ask for the audio recordings of the Commission hearings to establish the facts? Why did the prosecution team fail to interview former President Rawlings who claims to have evidence on the killing of the Ya Na? Why did they fail to interview the former head of BNI who according to media reports, resigned his position because of differences of opinions on how to deal with the Yendi disturbances and did not appear before the Wauku Commission? It beggars belief that all these were not addressed before the case was rushed to court. I appreciate that the employees of the State Prosecution Service are said to be overworked and underpaid, but these elementary lapses are inexplicable. My final question is, were they compelled by politicians to take to case to court without the necessary homework just to satisfy a manifesto commitment? There is no logic in such comparison.

Having rushed to court without the necessary preparatory work, it was not surprising that the case against the accused was dismissed for lack of evidence. With the inconsistencies and contradictions that were evident at the court, the Judge had no option than to dismiss the case because court judgements are made on the basis that, in a case of one hundred accused persons standing trial, “it is better for ninety-nine criminals to be set free than to jail one innocent person”. Instead of those who disagree with the judgement accusing the Judge or the judiciary of being biased or corrupt, they should accuse the Prosecution team of incompetence and lack of professionalism. They led down the state and as well as justice.

Is it not interesting to hear Ghanaians including lawyers compare the unsolved murder of the Ya Na with the unsolved assassination of Olof Palme, the Swedish Prime Minister who shot on 28 February 1986 from behind in a Stockholm street by an unknown assassin on his way home from a cinema with his wife. The two circumstances are different and should not be compared. The attempt to justify that the failure to resolve the Ya Na murder is not strange because even a developed and advance country such as Sweden has been unable to resolve the assassination of their Prime Minister is sad. Those making this analogy are misguided and do not understand the law of comparative reasoning. It is laughable to attempt to suggest that had Olof Palme being murdered in similar circumstances with people dismembering his body parts and decapitating his head and offering it as a trophy, the Swedish authorities would have failed to successfully prosecute those involved in such inhuman, degrading and barbaric behaviour. The Swedish society is not as divided as in Ghana, they believe in the rule of law, justice is not based on personalities has no political colours.

I am also surprised that though reports indicate that at least, thirty other persons also lost their lives in the disturbances, the accused were charged for the murder of only the Ya Na? Did no person from the other side (the Abudu’s) die? If so, why were all the accused from the Abudu gate? Justice must not only be seen to be done but it must also be done and that means justice for both the Andanis and the Abudus. The dispute was as the result of a 1969 disruption in the rotational system between the two gates (Andanis and the Abudus) on the Dagbon throne or seat. Prior to 1969 the Ya Na was rotated between Andanis and the Abudus who are from the same family. It is therefore only the Andanis and Abudus who can resolve their differences with assistance from state institutions and not political parties. Politicians only take advantage of the disputes and benefit by securing the votes of the Andanis and Abudus. The involvement of the two main political parties only aggravates the dispute and encourages belligerents and recalcitrant’s from both sides to commit heinous and barbaric crimes with impunity. What happened in Yendi on 25th, 26th and 27th March 2002 and the failure of the state to prosecute anyone for the crimes of murder is an indictment on the conscience of Ghana and Ghanaians and not just the NDC and NPP or the Andanis and Abudus.

Kofi Ata, Cambridge, UK