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Opinions of Thursday, 22 December 2011

Columnist: Ata, Kofi

Judiciary is Impartial, Incompetent and Taking Ghanaians for a Ride

By Kofi Ata, Cambridge, UK

I have avoided the debate on whether Ghana’s Judiciary is corrupt or not for a very long time because I was of the opinion that, the strange judgements by the courts had more to do with the incompetency of the Prosecution more than corrupt Judges. However, after careful observation of some court cases and judgements in Ghana, I have come to the conclusion that some Judges are impartial, also incompetent or corrupt and in fact, the Judiciary a whole is taking Ghanaians for a ride (corruption here does not necessarily mean taking bribes). I will try and provide some empirical evidence and analysis to buttress my conclusion. For reasons of time and space I will limit the evidence to a few cases and leave them to readers to judge for themselves. To be objective and avoid introducing any bias in my analysis, I will try to avoid the NDC/NPP trap of anti and pro Judiciary respectively, though my first example is a political case.

This year, it was reported that the entire Judiciary was boycotting cases involving lawyers who had accused the Judiciary of being corrupt without providing evidence to prove their claim. The Association of Magistrates and Judges of Ghana issued a statement to recuse themselves from hearing cases involving the said lawyers. That was followed by the Supreme Court adjourning sine qua non a very important constitutional case before it because some of the said lawyers were representing one party to the case. This is unprecedented in legal history, that is, a Supreme Court would boycott Attorneys appearing before it on a constitutional case because of a general (though serious) allegation against Judges or the Judiciary made by the Attorneys in question. In effect and by their unilateral decision, the Supreme Court has suspended or abrogated the relevant section of Ghana’s Constitution on the matter. By this action, the Supreme Court is being negligence and probably in dereliction of their constitutional duty.

It was alleged that a candidate who contested for Member of Parliament in the 2008 General Elections and won was not a bona fide Ghanaian at the time of filling the necessary documentation to contest for the seat. The citizenship and the eligibility of the MP to contest the Parliament Election were challenged in court and some aspect of the court case went to the Supreme Court for determination. I am tempted to believe that the case is politically motivated but that is irrelevant. Ghana’s constitution states that one must be a Ghanaian citizen to be eligible to stand for and be voted as Member of Parliament. Irrespective of the political connotation of the case, it is the absolute duty of the courts in Ghana to hear and determine the case expeditiously to uphold the Constitution of Ghana and to ensure that it is sacrosanct.

We all know that the Parliamentary term in Ghana is four years. It is therefore expected that any electoral dispute/s after Parliamentary Elections would be resolved by the courts within a reasonable time but must be within that Parliamentary period. The boycott by the Judges and Supreme is still ongoing and it is highly unlikely that the case would be disposed off by the end of the 2009/20012 Parliamentary term. May God forbid, but after 2012 should the allegation be established as fact by the courts, that would have meant an unqualified Member of Parliament has served a full term in clear breach of the Constitution. In that case could the constituents seek redress form the state that allowed an unqualified Legislator to represent them? If on the other hand, it is established that the allegation was false, then that Member of Parliament has had this albatross hanging over his neck for all these years. Could he also seek redress from the state for the failure of state institutions (the Judiciary) to protect his integrity? The accused has been denied the right to fair trial, through speedy and timely disposal of the allegation against him. It is also unprecedented for a citizen to be left in legal limbo as has happened with the Judges boycott and the Supreme Court decision to suspend the case indefinitely. The citizen who brought the case on behalf of the State must exhaust all the legal avenues in Ghana before he could seek redress outside Ghana (at the African Court on Human Rights and People’s Rights). Since the case is still pending, he is unable to seek justice outside Ghana and his rights to be heard in a court of competent jurisdiction has been violated by the very Judiciary that is expected to protect the enjoyment of this right.

A lot has been said and written about the action of the Judges and Supreme Court breaching the rights of the affected lawyers to work and earn a decent living, so I do not intend to spent more time on that. In conclusion, I postulate that the action of the Judiciary is not only illegal and unconstitutional in Ghana but also breaches the rights of all the interested parties in the case under International Covenants that Ghana is a party to such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. If the Judiciary is unaware of the aforementioned breaches, they are either incompetent, have no regard for the law, just taking the law into their own hands or holding the country to ransom. I challenge the Judges and the Supreme Court to prove me wrong. My second empirical evidence is the Ya-Na trials. According to the Wuaku Commission Chaired by Justice Wuaku, the Ya-Na was killed in a war situation. The Commission erred because war has a legal definition which falls outside conflict between two feuding families. A Dictionary of Law defines war as “military operations and armed conflict between opposing forces of nations and states”. It is often for control over territory, resources or power. Whether a state of hostilities amounts to war is a question of fact in each situation (see Kawasaki Kisen v Bantham Steamships No.2 [1939] 2 KB 544). Though war involves the use of arms not all conflicts that involve the use of arms constitute war. There was no war in any part of Ghana between 25th and 27th March 2002. Indeed the Constitutional Instrument (C.I 36) under which President Kufuor established the Wuaku Commission stated among others, “to investigate the Yendi disturbances on 25th to 27th March 2002”. Note “disturbances” and not “war”. So the killing of the Ya-Na was murder, a criminal act.

Let us assume that there was war in Yendi and that the Ya-Na was killed during the war. Even war is regulated by law (rules and regulations) that the combatants and belligerents are under obligation to respect during and after hostilities under the Geneva Convention (though the Geneva Convention may not be applicable in a family war or feud). It is against the laws of war to dismemberer the bodies of those killed at war (both combatants and non-combatants), so those who decapitated and dismembered the body parts of the Ya-Na were guilty of war crime and should have been identified and tried. Since there was no war and even if there was war the Geneva Convention would not be applicable, Ghanaian laws must be applied. I believe that it is illegal in Ghana to dismember human body parts or possess them, except for medical or any other justifiable reason/s permitted under law. Therefore it is incongruous and unheard of in legal history for an individual or individuals to be found to have decapitated and dismember a King’s body and or have these in their possession and yet after two trials in Ghana, no one has been found guilty.

I accept that it is not up to Judges to find the accused guilty but the duty of the Prosecution to prove their case in court. However, it is the duty of a Judge to ensure that justice is served in the interest of all parties and to protect the state (the common good). In both trials, since the Wuaku Commission’s principal recommendations included “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”, the Judges on both trials should have explored this matter to ensure that the culprits were brought to book. Even if the two were not responsible for killing the Ya-Na or dismembering his body, they should have been tried and found guilty for possessing human body parts (whether the body parts belong to Ya-Na or not.

As a former Member of Employment Tribunal, I know from experience that one of the duties of a Judge is to make sure that both Prosecution and Defence identify all relevant issues to be addressed during the trial and ensure that they are addressed. It is also the duty of the Judge to identity any relevant issues during the trial and to request both Prosecution and Defence to address them. Did the Judge in the first trial and Justice EK Ayebi (Judge in the second trial) perform their duties impartially and competently at the Ya-Na trials? If so, did they identify the fact that two individuals were found in possession of Ya-Na’s body parts and why are the two still free? If the state brought the wrong charges against the two or there were inconsistencies in prosecution witnesses’ evidence at the hearings, was it not incumbent on the Judges, was it not legally required and morally right and proper for the Judges to order the state to bring the appropriate charges against those found to be in possession of King’s body parts instead of discharging them as not guilty?

Again, Justice E K Ayebi erred in law by ruling that the body of the Ya-Na had to be proven to be his for murder charges to be successful. Murder trials have been successfully prosecuted in some cases even without a body, let alone proving it as that of the murdered victim by DNA. In my view, both the first trial Judge and Justice E K Ayebi were negligent and were either impartial, incompetent, not interested in administering justice or taking the people of Ghana for a ride (see my article of April 17, 2011 on Ghanaweb). Where did Justice EK Ayebi and the first trial Judge study law and how did they become Judges? Meanwhile, I recently read and heard from media reports in Ghana that a Nigerian couple were arrested and are awaiting trial for possession of body parts of unidentified person/s. Someone should tell me how would the state (Prosecution and the Judiciary) successfully prosecute them? Dos different laws apply if one is accused is a foreigner or the body parts do not belong to a King? How would the state identify the victim/s from the indentified body parts in a country where medical records of individuals are not kept?

My third and final example is the ongoing Nana Ama Martin cocaine case. I have already written an article on this matter so I will be brief (see Ghanaweb of December 17, 2011). As I concluded in that article, Judge Eric Kyei Baffour erred in law by granting the Defence’s application for retesting of exhibit that had been accepted as evidence a day after the Prosecution were no longer responsible for the evidence but the Judiciary. That meant the Judiciary which is supposed to be independent and impartial had become a party to the case since they were responsible for the safe keeping of exhibit/evidence to be retested.

Judge Baffour claims his decision was based on precedence the “Justice Georgina Wood’s ruling on the Jackson vs KLM case in which the Appeals Court ruled that merely because the defendant did not demand for verification of an exhibit tendered in evidence does not preclude him from doing so during trial”. Judge Baffour is wrong in relying on this judgement because, the evidence must still be under the control of one party for this to be allowed and not when the evidence has changed hands. Again, the application and interpretation of case law and primary legislation are different. For case law, often the circumstances must be similar. Was the case of Jackson vs KLM cocaine? Third, Judge Baffuor misinterpreted the words “does not preclude him from doing so during trial”. It does not give a blanket rights but a qualified one. If the exhibit had been destroyed after it had been tendered as evidence then it could not be retested at any time during the trial. Again, if the handling of the exhibit had changed hands with the potential risk for manipulation and interference with the exhibit then retesting at any time during the trial would not be applicable. Judge Baffour would have been right if the exhibit had remained with the Prosecution or the police throughout the trial.

It beggars belief that the Judiciary did not follow the laid down protocol (if any) in preserving the evidence. Instead of the strong room, it was kept in Judge Kyei Baffour’s office and was not under lock and key at all times but for some of the time. If this is not incompetence, what is it, corruption or both? We are now being told that, the Prosecution Attorney should have requested for the destruction of the evidence after the day’s hearing. If that is the protocol and the Prosecution failed to ask for it, why did the Judge not ensure that it was destroyed? Is it the norm for exhibit tendered as evidence to be kept in a Judge’s chamber and how often has such exhibit been kept in Judge Baffour’s office?

There are other examples that time and space would not allow me to cover. For example, in December 2008, an Appeal Court Judge made a public apology in Cape Coast on behalf of the Chief Justice for the wrongful application of the Road Traffic Act 683. The Chief Justice also offered a public apology on 28 December 2008 that some Circuit Courts Judges wrongful applied that Act instead of the Amended Act 761 and jailed or fined drivers when they should not have. This was just before the crucial second round of the Presidential Elections. Was that impartiality, incompetence, negligence or taking the people for granted? I am not suggesting that Judges should not have political opinion, far from it. They are human like you and me and since they are part of society, they have every right to hold their own political views. What is wrong is for Judges to be party political and in my view that was what happened with those apologies.

For me, the most important of the three arms of governance in any democratic society is a strong, impartial independent and effective Judiciary. A strong, impartial, independent and efficient Judiciary can check a corrupt Executive and a weak or corrupt Legislature and thereby strengthen democracy. It can also check abuses by the Executive, the Legislature and other state institutions, non state actors and powerful individuals. A strong independent, impartial and efficient Judiciary would also contribute to the development of strong human rights and other anti-corruption institutions, including NGOs. Strong, independent, impartial and efficient Judiciary will contribute immensely to the fight against the drug menace and the danger it poses to Ghana’s development and her very existence. A strong, independent, impartial and efficient Judiciary will result in strong, independent and vibrant media, contribute to the fight against poverty and bring increased foreign investments, reduce crime and make Ghana a better place to live. I prefer a strong, independent, impartial and efficient Judiciary to a strong Executive and Legislature.

Ghana will be fighting a losing battle on corruption, poverty and drugs if the Judiciary is weak, aligned to political parties or any interest groups, incompetent and seen to be corrupt. In fact, I believe that some of the strange court judgements in Ghana, judgements that are not grounded in the laws of the land are what give credence to the corruption allegations against the Judiciary. I recognise that society would not accept all the judgements from the courts and therefore no matter what, some judgements would be controversial and be criticised. Another challenge for the Judiciary in Ghana is the interpretation of their actions and omissions into the microscopic DNA of NDC/NPP. It is important for the Judiciary to rise above party politics and perform their duty without fear or favour by maintain their independence, impartility, remain strong and prove to the public that its cardinal goal is justice for all and at all cost. Even in the developed democracies such as the UK and US, Judges are divided into Conservatives and Liberals and sometimes their judgements have ideological and political flavours but firmly rooted in law and refrain from being party political. This is a challenge to Ghana’s Judiciary and I would want to hear from them or you.

Merry Christmas.

By Kofi Ata, Cambridge, UK