By Kofi Ata, Cambridge, UK June 3, 2015

It was unbelievable to read on Ghanaweb that the soon to be Justice of the Supreme Court of Ghana, Justice Yaw Appau is reported to have said at one of his confirmation hearings in parliament that “Yaa-Naa Yakubu died from what he described as communal war during the 2001 clashes between the Abudu and Andani gates” He further stated that, "when people die in war it is difficult to single out people and charge them with murder,"
Justice Apau also said “he provided the jury with the facts of law and they acquitted the accused person” (see “Yaa-Naa died in war – Justice Appau”, Myjoyonline.com/Ghanaweb, June 3, 2015).

What the learned Justice is reported to have said is not only factually wrong but also legally false and dangerous for him to make such claims when he appears to lack legal knowledge in the area of law that pertains to war (the law on Armed Conflict and the Use of Force). War is regulated under international law and therefore the law of war referred to as the International Law of Armed Conflict and the Use of Force, also commonly known as International Humanitarian Law).

War is a legal term and usually 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 (communal) war. It was not even an ethnic conflict but simply, a family feud between two lines/brothers or gates that got out of control.

The mere fact that arms were used in the feud, lives and properties were lost does not constitute war. War is simply not the use of arms but also the scale, the combatants and belligerents (both state and non state actors) involved. War is also often but not always declared by someone in position of authority or control over territory. War in any part of Ghana can only be declared by the Commander in Chief, the President and for these reasons, there has never been a war in modern day Ghana since independence.

The learned Justices should have also known that the mere fact that in Ghanaian languages, especially Akan, conflicts between opposing groups that involve the use of arms (whether machetes, guns or bow and arrow) causing loss of lives and property is commonly referred to as war does not necessarily meet the legal definition of war. Indeed, when Justice Appau said “he provided the jury with the facts of law and they acquitted the accused person”, that was false because he did not know the facts of the law as pertaining to the law on war. If he knew, he would have concluded that what happened was not war but a criminal act between two sides of one family.

Justice Appau also should have known that even in war there are rules regarding the treatment of fallen combatants and no cambatants. By the Geneva Conventions such bodies must be treated with respect and dignity. Those from the opposing side, when possible should be properly identified and preserved so that at the end of hostilities they could be exchanged for proper burial. They should never be mutilated and in fact it is a war crime to mutilate the bodies of fallen combatants at war. Therefore if Justice Appau was even right that the Yaa-Naa died in a communal war, he should have known that the dismemberment and burning of his body should have been a war crime that those responsible should have been prosecuted and found guilty of war crime. Did Justice Appau know these? Absolutely not, yet he claimed “he provided the jury with the facts of law”

Justice Appau did not provide any facts of law but rather wrongly misled the jury to acquit the defendants. For the above reasons, the trial at which Justice Appau presided over was miscarriage of justice and the judgement should be set aside because there was no war and if there was war, Justice Appau did not know the law, let alone apply it.

The facts of the matter was that and from the White Paper issued by the then government on some of the recommendations of the Wauku Commission and I quote, “government accepts the general findings and recommendations of the Commission and many of its specific findings and recommendations. The principal recommendation is that Yidana Sugri and Iddrisu Gyamfo, who were seen on 27 March 2002 holding several parts of the late Yaa-Naa Yakubu Andani II, soon after his killing and who should be presumed to have killed the Yaa-Naa should be prosecuted for murder”.

White Paper stated, “as far as other specific recommendations are concerned the Attorney General will issue 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. Iddrisu Iddi is so implicated because it was to him that Iddrisu Gyamfo presented the decapitated head of the Yaa-Naa, and the other two because of evidence that they pulled the body of the Yaa-Naa to the kraal before it was burnt”. Of course, if in the end only two were prosecuted for conspiracy to murder and one turned out to be the wrong person, then Justice Appau was right to conclude that there was no conspiracy but that has nothing to do with war.

Justice Appau, even if there was war per your own words of “communal war” did you not believe the findings and recommendations of the Wauku Commission and the government’s White Paper? For your information, crimes committed during war are punishable and that is why there is war crime. For your information, there is no such thing as “communal war” in law but rather communal, ethnic or religious conflict. Some ethnic and religious conflicts could constitute war if they are widespread and last longer as well as the type of arms used.

It is high time Ghanaian Judges are honest to themselves and the nation when they lack knowledge in some areas of law rather than pretend to know it all. No lawyer, Attorney or Judge, including Justices of the Supreme Court can claim to have knowledge in every area of the law. Judges are not appointed because they know it all and it’s no shame to admit lack of knowledge in one area of law. For example, when US Supreme Court Justice nominee, Justice Sonia Sotomayor appeared before the Senate Judicial Committee for her confirmation and was asked for her opinion on the legality or otherwise of the Military Guidelines issued to US Forces in Iraq, she openly admitted that she was not conversant with that area of law (International Law of Armed Conflict and the Use of Arms) and therefore she did not have an opinion. That is honesty which is what is required of a judge.

Justice Appau unlike SCJ Sotomayor is pretending to know the law of war when indeed he had no clue to that area of war. By his pretence, he misdirected the jury and ended up dispensing injustice. The question is, should Justice Appau be confirmed as Justice of the Supreme Court of Ghana?

Kofi Ata, Cambridge, UK