the Police or Judiciary?

By Kofi Ata, Cambridge, UK

This week the Ghanaian media has been busy with another cocaine saga. That is, the mysterious metamorphosis of cocaine into sodium bicarbonate in a controversial court case involving the Police and or the Prosecution on one side, the Defence and the Judiciary on the other. This case has attracted attention throughout and beyond Ghana. Already, people are divided on what did or did not happen depending on one’s political affiliation. Some NNP supporters claim that it is NDC’s cocaine saga similar to the disappearance of cocaine under the NPP regime and NDC supporters claiming that unlike the NPP days, the government is acting swiftly to unearth the facts surrounding the miracle. This article is to look at the weakness of the case management, potential complicity by the parties involved and the multifaceted approach by the Ghanaian authorities to find what out what really happened.

Details of the case are scanty but so far and according to the police, Nana Ama Martin, the accused was arrested on August 22, 2008 for carrying a substance suspected to be cocaine. The substance was examined on August 23, 2008 at the police forensic laboratory and tested positive for cocaine (weighing 1,018.57 grams). The suspect was subsequently charged for possession of narcotic drug without lawful authority and was remanded into custody at a Circuit Court before Judge Mr Kyei Baffour. It is not clear when the first court hearing took place but I suspect soon after the laboratory test. Though by Ghanaian law narcotic cases are not granted bail after several adjournments the accused was granted bail by the Judge and she even jumped bail to travel to the United States. The dates of the several adjournments as well as when the bail was granted are not given. It is also not clear whether Nana Ama Martin is a Ghanaian citizen, of dual nationality or a foreigner.

According to the Director General of Criminal Investigations Department, Mr Prosper Kwame Ablor, while the trial was going on counsel for the accused filed a motion for bail at High Court ‘4’ and the application for bail in the sum of GH¢60, 000 was granted with two sureties, one to be justified. This suggests that the police rearrested the accused for jumping the first bail, though it is not stated by the police and again, we are not told the dates of these events.

Mr Ablor also states that while waiting for the execution of the bail, the case was finally called on the September 27, 2011 where the investigator gave evidence and tendered the exhibit in court. The sealed exhibit was shown to the court and the defence counsel raised no objection and it was admitted in evidence. On September 27, 2011 and on the orders of the court, the forensic laboratory seals were broken and the exhibit handed over to the court and the case was adjourned to September 28, 2011 for cross examination of the investigator. When the trial resumed on September 28, 2011 the defence counsel who raised no objection at the time the seal was broken on the previous day, raised an objection that the evidence, which was earlier admitted to be cocaine was not cocaine. The unsealed exhibit was brought from the custody of the court and the Judge ordered for sample to be taken and sent to the Ghana Standards Board (GSB) for re-examination. The Court Clerk took a sample and handed over to the Court Registrar to keep and on September 29, 2011, on the orders of the court the Registrar accompanied by the investigator sent the sample to GSB for the re-examination. On November 22, 2011, the analysis from the police forensic science laboratory and that of the GSB appeared in court, with the GSB analysis proving negative and the police maintained its earlier test was authentic.

I have reproduced the above accounts for the benefit of those who have not followed the story but also to enable me analyse them. Though I am not a lawyer, the sequence of events as narrated by the senior police officer is laughable to me for a number of reasons. It is strange but I am not surprised that such events can happen in Ghana. It is a country where the judiciary do not see anything wrong with someone having in his possession the decapitated head and body parts of a paramount chief, yet others are arrested and charged for possession body parts of unidentified persons. The utter incompetence of the police, prosecution and possibly the judiciary sometimes beggars belief.

The questions I and I believe most Ghanaians at home and abroad would want to ask are: what was happening between August 23, 2008 and September 27 20011?, why was the accused granted bail?, what did the police do when the accused jumped bail and travelled to the United States?, etc.

Now let me analyse the lapses and incompetence in the case. First, the police and or the prosecution. I assume when Nana Ama was arrested on August 22, she was interviewed by the police or even a statement was taken from her under caution. If that was the case, what did she say the substance found in her possession was? Did she admit ownership of the substance or that the substance was found in her possession at the time of her arrest? Even if she denied that the substance was not cocaine, did she say it was sodium bicarbonate at the time of her arrest? Second, since her arrest and as part of the court hearing, were there exchange of witness statements between both the Defence and Prosecution (Police) witnesses and if so, what did the accused state in her witness statement regarding the substance found in her possession? On September 28, 2011 when Defence Counsel raised objection about the exhibit not being cocaine at the court and asked for retesting, did the police/prosecution object to the application? If so, did the Judge overrule the Prosecution’s objection and on what grounds? Has the police/prosecution lodged an appeal against the decision of the Judge to discharge the accused?

I posed the above questions not because they would answer all the lapses but they are fundamental issues of effective case management. It is possible that, Nana Ama Martin exercised her rights to silence when the police arrested her and or during the police interview, so we do not know what she said the substance found in her possession was. It is also possible that there were no exchange of witness statements prior to the court hearing, so we still do not know what she might have said regarding the substance found in her possession on August 22, 2008.

For the Defence Team, there is no much blame, if any, on their part. After all, their main goal was to use any legal means to secure the acquittal of their client. However, is it not strange and even incompetence for them to admit the exhibit as presented as evidence on September 27, 2011 only to turn round and object to it the next day? Was the risk of the Judge not granting their objection too high in legal terms to have adopted such an approach? Why did the Defence failed to ask for a retesting of the exhibit for over three years until the second day of hearing? Of course unless they aware and sure of what others did not know. In other words, they had a plan to execute.

The Judges/Judiciary. Though the Legislature enacts laws in Ghana, it is for the courts (judges) to interpret and apply the law and they have the authority to use their discretion in application of the law. Therefore, though the law states that narcotic cases cannot be granted bail, Judges have the power to assess each case and consider an application for bails and if certain conditions are met, bail may be granted to protect the human rights of the accused. I do not find anything wrong with the accused being granted bail, especially since the case has taken three years to come to a full hearing. However, I found it strange that the accused jumped bail and travelled to the US. The questions for the judiciary are: why did the Judge grant the application for retesting of the exhibit by the Defence a day after admitting it as evidence, particularly since the defence has had the chance to do so since August 23, 2011? Was that not abuse of the court process and on what legal grounds was the application granted? Who received and kept watch over the unsealed exhibit from September 27 to 29, 2011? Who had ultimate responsibility to secure and ensure safe keeping of the exhibits?. What safeguards were put in place by the court to ensure that the sample was not tempered with whilst in the custody of GSB?

Already, some big shots in Ghana have taken positions and some have even come to the defence of the police. For example, my former colleague and now Executive Secretary of the Narcotic Control Board, Mr Yaw Akrasi Sarpong is reported to have said that, the hands of the police are clean. Mr Obiri Yeboah, a lawyer and a former Minister in Kufuor’s government also said on London based Radio Focus that the police cannot be faulted for what has happened. Should we give the police the benefit of the doubt? May be, but the record of the police when it comes to the safe keeping of cocaine exhibits is nothing to be proud of. Anything and everything is possible within the Ghana Police Force.

So far discussions and debates suggest that most Ghanaians suspect that the exhibit was tempered with when it was in the custody of the courts. I am tempered to support this hypothesis because I cannot fathom why the Defence Team asked for retesting not on September 27 but on 28, 2011 (a day after the exhibit had been unsealed and handed over to the court)? My suspicion is that it was an inside work by someone with access to where the exhibit was kept by the court, who replaced the original exhibit with sodium bicarbonate. This was carefully planned and executed with precision and to perfection. I wonder if the exhibition room had CCTV. The onus is on the judiciary to prove beyond any reasonable doubt that their hands are clean. Again, the granting of bail, the application for retesting of the admitted evidence on the second day of hearing and the immediate discharge of the accused by the Judge raise a number of doubts about the competence and integrity of the Judge. Others would say that free and fair trial under criminal jurisprudence and the principle of innocent until proven otherwise demand that the Judge discharged the accused. Give me a break, not in a corrupt criminal justice system such as the one in Ghana where the police, prosecution, defence and the judiciary are often all accused of corruption. Not in this case where the figure prints of corruption could be seen even without a microscope.

Ghanaian authorities appear to underestimate the ability, powers and influence of drug barons over the criminal justice system. Their ability, powers and influence over state institutions all over the world are insurmountable. They are very well organised with effective strategies and sufficient resources to buy both the weak and the powerful, including messengers, clerks, all levels of security agencies, defence and prosecution lawyers, judges and politicians in defence of their trade. This is a typical case of their network at full display with impunity in a weak and corrupt system.

The response by the authorities is nothing but a knee jerk reaction with three committees concurrently working on the same case to find the culprits/s, if any. How can the Chief Justice justify establishing a committee without any single individual suspended from work? How can we trust Judges to investigate the Judiciary? What has been the experience in the past? With the BNI committee established by the Vice-President to present its report without seven days, how competent are they in view of the catastrophic errors made by NBI and other state security agencies in the past? Would such twin approach not hamper progress and in fact, delay their work as there is the potential for the two or three committees to fight among themselves for supremacy? Is this approach value for money and prudence and not waste of scarce resources? With the Police Committee, how can we trust the police to investigate themselves? Ghana is a country full of confusion and incompetence with no one taking responsibility for anything. I doubt if these committees would come out with anything of substance but I may be wrong.

I do sincerely hope that this case would not turn into the usual NDC/NPP rivalry, that it happened under NPP and it has happened under NDC’s watch, so both parties are the same. Please for heaven sake, take out the politics and deal with this as a very serious crime, capable of destabilising Ghana if not checked. When drug barons corrupt Ghanaian institutions, the negative impact would felt by all, irrespective of political affiliations. Drugs pose a danger to the state of Ghana and corruption within the criminal justice system would destroy Ghana’s democracy, the freedoms, the rule of law and the very fabric and existence of the state. If Ghanaians want a lawless state, a failed state then they should continue the discourse along political lines and apportion blame to each other, instead of collaborating to find solutions.

Kofi Ata, Cambridge, UK