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Opinions of Monday, 19 December 2011

Columnist: Ata, Kofi

Is Ghana’s Prosecution Service Fit for Purpose?

By Kofi Ata, Cambridge, UK

In May 2006, the then UK Secretary of State for Home Affairs (commonly known as the Home Office), His Rt Hon John Reid, now Lord Reid shocked politicians and civil servants when he appeared before the House of Commons (Lower House of Parliament) Home Affairs Committee and told them that, the then Immigration and Nationality Directorate (IND) under his department (ministry) was “not fit for purpose”. According to him, the IND lacked adequate leadership and effective management system, the directorate was dysfunctional and needed a wholesale transformation. In fact, his ministerial colleagues and MPs from his own side (Labour Party) were not impressed about his damning of a directorate under his leadership. I was torn between believing him and disbelieving his claim for two opposing reasons. From personal experience, I could not believe that the directorate in question lacked leadership because I had known and worked with the then head of IND when she was Chief Executive of a county council in the East of England where I was head of a Race Equality NGO. She was very efficient, effective and showed strong leadership. Prior to becoming the head of the IND, she was the Chief Executive of the biggest local authority in the UK, currently the Permanent Secretary at the Department (Ministry) for Transport and just last week it was reported that she has been appointed head of Inland Revenue from next year.

On the other hand, I believed the minister because I experienced the dysfunctional operations of IND as a postgraduate student. IND officials came to the university where I was studying in 1992 to extend visas for foreign students. Despite providing letters from the university and my sponsors (Association of Commonwealth Universities and the then Overseas Development Association) confirming that I was on full scholarship, my fees were fully paid and the duration of the postgraduate course was one calendar year (1st October 1992 to 30th September 1993), the Immigration Officer was suspicious as to why I visited UK every summer since 1988 and rejected my explanation that most English speaking students from former British colonies in Bulgaria spent their summer holidays in the UK and US. She took my passport away and returned it by ordinary post with extended visa up to 30 July 1993. Only an illiterate and inefficient immigration officer in a dysfunctional directorate would behave that way. Lord Reid was being honest, except that sometimes, the truth hurts and some people do not want to know. Very few politicians would be that candid with in public. Since Ghana’s State Prosecution lost the Ghana @ 50 and the Ya-Na court cases, I have been following media reports on the work of the Attorney General’s Department, particularly, on prosecution of cases and I have come to the conclusion that, Ghana’s Prosecution Service is not fit for purpose. I must clarify that this is not a personal attack on previous or the current Attorney General and Minister for Justice, who I know from our PNDC days. Whenever I read media reports on some courts cases, I am amazed by the sheer incompetence and amateurish of some of the attorneys representing the state (the prosecution). Sometimes, they even do not turn up in courts and also fail to inform the courts, which should not only be done for curtsey but also to avoid waste of time and resources. On some days, they turn up late with no explanation as why they were late. They often ask for adjournments for varied reasons and when they are ready, they come across as unprepared and their performance is anything to be proud of. I am not a lawyer and though the law is not common sense, I cannot believe some of the elementary mistakes they commit in prosecuting cases, as if their main goal is defeat. In some cases, the judge is compelled to give default judgement because the Attorney General Department failed to represent the state at the hearing or put up a defence. The catalogue of inefficiencies by the State Prosecution is beyond comprehension. I guess probably, that is how things are done in Ghana but I beg to differ because defence counsels are better organised and more effective at courts.

The failures, unwillingness or inability of the Attorney General’s Department to make use of the appeal process is very disturbing and a risk to case law development in Ghana. Ghanaians were made to believe that the State would appeal against the Ghana @50 and the Ya-Na judgements, yet up to date, no one knows what is being done by the Attorney General’s Department to lodge the appeals. Instead, they hide behind their incompetency and accuse judges of corruption and being biased against the state. I am not here to defend the judiciary and I have my own suspicion that some judges may also be incompetent, corrupt and biased against the state for whatever reason/s. Notwithstanding these obstacles the main culprit for the unfavourable judgements against the state is the incompetence by the prosecution and or the Attorney General Department. For example, in the ongoing Nana Ama Martin cocaine mystery, if the state prosecutor was convinced that the Judge erred in law or procedurally by allowing the defence’s application for a second test a day after the exhibit had been accepted as evidence, what stopped the Attorney General’s Department from going to a higher court immediately to lodge an appeal? Clearly, that was legally unsound in criminal law and matters concerning exhibits tended and admitted as evidence in court. Why did the state attorney who represented the state not ask both the Defence Counsel and the Judge to state the legal authority, including case law for the application and the decision to allow the second test respectively? Why did s/he fail to also state the legal authority to buttress the objection?

Recently, I heard an audio recording of a senior State Attorney (on Peace FM) demanding bribe from the family of the accused to lose a case he was prosecuting. He was recorded requesting for more money because he had to pay the judge to rule in favour of the accused and against the state. From that recording, it is clear that, there is not only incompetence but also corruption and possibly sabotage within the Attorney General’s Department. Corruption in the administration of justice in Ghana is not limited to the judiciary (courts staff, officials and judges) but it is as widespread as a contagious disease or malignant cancer affecting every fabric of the justice system (the Prosecution and other investigation authorities and the Defence), Both Defence Attorneys and the Prosecution are capable of bribing judges and court officials to manipulate evidence, witnesses and judgements, whilst the investigating authorities accept bribes to manipulate evidence and influence the investigations in favour or against the accused or the prosecution.

For the state to reverse the incompetence and improve the performance of prosecutors there is the urgent need for root and branch reorganisation of the Prosecution Service in Ghana. I understand the NDC made a manifesto commitment to separate the Attorney General’s Department and Ministry of Justice into an independent Prosecution Service but sadly, like all or most of their manifesto commitments, that has not come into fruition. The separation is absolutely critical not only to improve the prosecution service but also to wean off the political contamination in the prosecution of cases. Many Ghanaians believe that some decisions to prosecute are politically motivated and a country where the prosecution, defence and the judiciary are divided along the two political beasts, most high profile court cases become victims of bi-partisan antagonism in Ghana. Prosecution and trials are not about vengeance and retribution but to demand justice, through transparency, fairness and equity for all, irrespective of political, religious, socio-economic, gender, marital, etc status. The creation of an independent Prosecution Service headed by a technocrat capable of making independent decisions devoid of politics on prosecutions is long overdue in Ghana. That should be accompanied by competency based skills training for Prosecutors and adequately resourced. State Prosecution Service should also cast the net wider in search of prosecutors, including instructing private Barristers and experienced lawyers to prosecute high profile and specialist cases on behalf of the state. After all, successful court outcomes in an adversarial system as in Ghana is not always how good or bad the case is, but victory is often dependent on how good or bad the attorney is. It is abundantly clear that the defeats suffered by the state at the courts are not due the state not having good or bad cases but rather more to do with poor prosecution. A typical example was the Ya-Na case. What you see is what you get or chuff in chuff out. Without sounding boastful, I could have done a better job in that case and at least, secured conviction for the person/s that had in their possession the decapitated head and body parts of the Ya-Na.

From the above failures, non-attendance at courts, defaults judgements against the state and others, it is obvious that the Prosecution Service or the Attorney General’s Department lacks effective leadership. Perhaps, the Attorney General and Minister for Justice and his lieutenants are too busy with political decisions on the drafting of bills and bi-lateral and multi-lateral agreements or even preoccupied with unrealistic schemes to prosecute and convict political opponents and therefore have no or little time for prosecuting other criminal cases. Ghana needs a national prosecution service with an independent and apolitical head who would report on policy to the minister but be solely responsible for leadership and direction, the development and implementation of strategic policies and the day-to-day operational delivery of successful prosecution. A service with skilled, competent and professional prosecutors that would make it feasible for state to secure successful prosecutions, convict criminals and contribute to making Ghana a safe and secured country where the rule of law would be respected and criminals would find it difficult to corrupt officials to purchase justice as a commodity, sold in the market place by the most corrupt to the most guilty at the highest price amongst corrupt judges, court officials, investigators, criminals, defence and prosecution attorneys with the public as mere spectators and victims of corruption and incompetence. Ghana deserves a better prosecution service and I do not believe that there are no well qualified lawyers in Ghana to be competent and successful prosecutors for the state.

Kofi Ata, Cambridge, UK