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Opinions of Sunday, 2 August 2015

Columnist: Ata, Kofi

Is Justice Francis Obiri a Danger to Rule of Law?

By Kofi Ata, Cambridge, UK July 31, 2015

Recent events in Ghana regarding certain decisions of the Judiciary/Judges and the Legislature, the two pillars of constitutional democracy and rule of law have left much to be desired and a sour taste in the mouths of the citizenry. I am referring specifically to the ten-year jail sentence imposed on Mr Charles Antwi by a High Court Judge, Justice Francis Obiri without lawful process and the summon of citizens to Parliament to face the Privileges Committee for contempt of parliament as well as the deluded belief that Parliament has powers to jail citizens for contempt of parliament. This article is an analysis of the dangers the two democratic institutions pose to Ghana and her citizens by their usurpation of powers that the 1992 Constitution prohibits.

The two cases are well known and I need not restate them in detail but just to remind readers that Mr Charles Antwi was arrested with a loaded gun at the church where the President and the Chief Justice worship with the intention to murder or assassinate the President. He was put before court with unprecedented speed of light for illegal possession of arms on Tuesday July 28, 2015. He was reported to have confessed that he went to the church to kill the president because he should have been the president following the death President Mills but was denied. Instead, the then Vice-President Mahama was made the president. Without an Attorney, Justice Obiri administered instant (in)justice with the speed of darkness and sentenced him to ten years imprisonment on his own confession. More disturbing was that the court appearance was not for the purpose of trial but just to take his pleadings to give the prosecution time for further investigations and trial at a later date.

Mr Antwi’s confession in court should have set alarms bells ringing and Justice Obiri should have reprimanded the prosecution for presenting him before the court without an Attorney. The judge should have also ruled his confession inadmissible and ordered the prosecution to find an Attorney for accused to explain the charge to him and the potential consequences of his confession. Finally, Justice Obiri should have ordered psychiatric examination of the accused before trial at a later date. In simple language, Justice Obiri ought to have known and must have known from Mr Antwi’s confession that he has mental health problem. Instead, Justice Obiri accepted the confession, concluded that there was nothing wrong with the accused and immediately sentenced him ten years imprisonment.

Justice’s bizarre judicial decision is not what is expected of even a lay magistrate on his/her first day at court, let alone a High Court Judge. By his actions, Justice Obiri constituted himself into prosecution, jury and judge in his own court. In fact, Justice Obiri’s judicial decision is so irrational that one is left with no explanation except to conclude that, perhaps, there is something wrong with him. For him to conclude without any medical evidence that Mr Antwi is sane could be an indication that either Justice Obiri also needs psychiatric examination or he has one-dimensional understanding of mental health, that is, madness.

Without boring you with legalities, another twist in Justice Obiri’s theatrical judicial decision is that the charge for which he incarcerated the accused for ten years has a maximum penalty of six years and not ten. These were indications that Justice Obiri lacks knowledge of the laws of the land for which he is supposed be a custodian and enforcing through his court. Sentencing an accused without an Attorney in a case that the prosecution itself was not ready to prosecute is also an indication that he is unaware of the contents of the 1992 Constitution, particularly, the rights and freedoms of citizens under Chapter Five (Fundamental Human Rights and Freedoms).

Having examined the case, it is obvious that Justice Obiri breached the following Articles of the Constitution: 14(1), the right not to be deprived of one’s personal liberty unnecessarily except in accordance with procedure permitted by law, 14(2) the right to be represented by a lawyer of one’s own choice, 19(2), the right to a fair hearing and within reasonable time by a court and 19(6) “No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed”.

The jailing of Mr Antwi by Justice Obiri (deprived him of his personal liberty unnecessarily) was not in accordance with any procedure permitted by Ghanaian law because he had no attorney let alone of his own choice, the time was unreasonably quick and the maximum penalty for the offence was six years and not ten that he got. Justice Obiri breached Mr Antwi’s constitutional rights as in Articles 14(1)(2) and 19(2)(6).

What remedy, if any is available to Mr Antwi following Justice Obiri’s perverse judgement? Because (In)Justice Obiri’s madness is unconstitutional as shown above, Mr Antwi can exercise his right of appeal against the miscarriage done to him relying on Articles 14(1)(2) and 19(2)(6). The appellant court should uphold his appeal and either set him free or order a retrial. However, a retrial is unlikely if the appeal is by Mr Antwi because of the problem of double jeopardy under Article 19(7) which states that, “No person who shows that s/he has been tried by a competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or any other criminal offence of which s/he could have been convicted at the trial for the offence, except on the order of a superior court in the course of appeal or review relating to the conviction or acquittal”. As far as this case is concerned, the fact that Justice Obiri was incompetent does not make the court incompetent one and the records will show he was tried and convicted on his own confession, though a retrial is possible if the state appeals against Justice’s Obiri’s perversion of the cause of justice.

What are the dangerous of Justice Obiri’s blatant disregard to due process under rule of law and breach of the Constitution? The first danger is that Ghanaian citizens are at risk of suffering miscarriages of justice not at the hands of the Executive but at the pleasure of the Judiciary. In fact, Justice Obiri is a danger to the dispensation of justice under constitutional rule of law and unfit to be a judge. In other words, he is a risk to the fundamental human rights and freedoms guaranteed Ghanaians under Chapter Five of the 1992 Constitution.

The second danger is the risk to Ghanaians of Mr Antwi being released onto the streets because of the failures of Justice Obiri. Mr Antwi has mental health problem and should be sanctioned to undergo treatment as he poses a risk to the public. He is currently a danger to himself and to fellow inmates in whichever prison he is serving his sentence.

The second matter is also well known and needs no reminder. The appearance of Mr Ken Kuranchie, Blakk Rasta and Prof Dodoo before the Privileges Committee for contempt of parliament for merely expressing unfavourable views about parliamentarians is also danger to free speech and principle of accountability. More dangerous is the position of the Speaker that Parliament can jail citizens for contempt of parliament without due process through the judiciary. That, those who disagree should go to the Supreme Court. That is usurpation of both Executive and Judicial powers in contravention of separation of powers between the Executive, Legislature and Judiciary. Those who are of the view that Parliament is right because the UK Parliament has similar powers are wrong because in Ghana sovereignty rests with the people and not the Legislature. On the other hand, in the UK the people are not sovereign but only the Monarch and Parliament are sovereign. The people are subjects of the sovereign. I am not qualified to make the requisite legal or constitutional argument over this but I refer readers to a brilliant article by Prof H Kwasi Prempeh entitled, “Parliament versus the People: Contempt of Parliament or Contempt of the People?”, (Joyfmonline, July 26, 2015). I strongly recommend the article to readers.

The dangers of Parliament being prosecutor and judge in its own court are obvious. Apart from the constitutional dilemma of usurping the powers of Executive and the Judiciary, it’s also intimidating the people into silence. It makes the sovereign people subservient to parliament. As a result, the people would be scared to openly question the actions and omissions of the legislature and hold the parliament to account. Ghana’s democracy is at risk of being hijacked by the Legislature as the separation of powers is thrown into parliamentary dust bin by the legislatures.

Another danger is the silence of the media (the unofficial fourth arm of government, which should hold the Executive, Legislature and the Judiciary to account, constitutional bodies such as the Commission for Human Rights and Administrative Justice (CHRAJ), the National Media Commission over the abuses of ordinary citizens by the second and third arms of government as well as the Ghana Bar Association and Civil Society organisations. Are they only interested in NDC/NPP politics of divide and rule?

The question is where is Ghana heading to when both the Judiciary and Legislature are dispensing instant justice or injustice to the citizenry, whilst those who should stand up for the citizenry are missing in action or gone AWOL? Is that the constitutional democracy under the rule of law that Ghanaians and particularly, the framers of the 1992 Constitution envisaged? Is Ghana not gradually becoming a banana republic and a global laughing stock?

Because of the serious nature of Mr Antwi’s intended action of murdering the president of the republic, one would have expected that due diligence would have been taken by all parties involved to deal with the matter as judiciously as possible and not subject it to this kangaroo court episode. Perhaps, Justice Obiri is looking for promotion for his instant injustice with the delusion that he is doing the Executive a favour and in so doing President Mahama might return the favour with a reward as Appeal Court Judge. If that was his intention he has misfired and instead he should be demoted for deliberate breaches of the 1992 Constitution and causing miscarriage of justice. Ghana deserves better.

Kofi Ata, Cambridge, UK