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Opinions of Tuesday, 4 December 2007

Columnist: Asante Fordjour

Justice Struggles, Where The State Is The Alleged Criminal

DEBATE AND COMMENTARY

Is the revelation at the Parliamentary Accounts Committee (PAC) an Indictment of the NPP?

Modern states; according to Green and Ward (2004:1), are responsible for killings and plunder on a scale that no ‘robber band’ could hope to emulate. Any attempt to quantify their crime, in the words of the law professors, is inevitably subject to enormous margins of error, but by adding up mid-range estimates, R.J. Rummel (1994) calculated that from 1900 to 1987, over 169 million people were murdered by governments. This excludes deaths in wars (about 35 million, an unknown proportion of which resulted from war crimes), judicial executions (other than those resulting from ‘show trials’) and killings of armed opponents or criminals. Government officials, it is revealed, also make a major contribution to property crime. According to a major international victimization survey (Zvekic, 1998); being asked for a bribe is the second commonest form of criminal victimization (after consumer fraud) outside the industrialised world. But such petty corruption, per Green and Ward, pales into insignificance besides the ‘grand corruption’ of political elites. The late dictator Sani Abacha, for example, is accused of stealing $4 billion (£2.75 billion) from Nigeria which is more than the annual amount stolen and damaged in all residential and commercial burglaries in England and Wales ((£2.3 billion, Brand and Price, 2000:56). These apart, the other obvious difference between ‘robber bands’ and ‘states without justice’, according to St Augustine (The City of God, c. 427CE), is that states claim the power to decide what is ‘just’, who is a robber and who is a tax-collector.

I. THE STATE

In our earlier edition- Measuring Rawlings-Kufuor, we saw the power and the authority of the state. We agreed that our democratic values- for example, the playing of abomaa, adowa, agbaza, borboobor and not least, palogo, can undoubtedly subside where the state appears helpless in protecting its citizens and assets. Not withstanding this challenging role, Tilly (1985) argues that states often resemble protection rackets, in that they demand payment for protection against threats that are either imaginary or are the consequences of their own activities. Modern nation-states, in the words of Green and Ward, are best understood as the creations of coercive and ‘self-seeking entrepreneurs’. Yet, over a long historical period (16th to 20th century), the most successful states, according to the writers, have been those that ‘developed a durable interest in promoting the accumulation of capital’ and accepted certain restrictions on their power as the price of organising their populations efficiently.

In a country where alleged embezzlement of some 3.8 billion cedis seemed to have escaped the memory of a regime that demands evidence before pursuing allegation of bribery and corruption charges, one is tempted to inquire whether our Homeland, is being administered justly. Yet, we may concede that the ruling NPP under the stewardship of President J. A. Kufuor, has some indisputable characteristics of a transitional administration? A transitional administration is described by international criminal lawyers as an interim regime set up to hold power until election can be held or a permanent government can otherwise be established when a political void has been created by the collapse of previous administrations or regimes.

We have no better evidence to this argument than the prior political bargain struck between the African National Congress (ANC) and the National Party (NP) that led to the release of Nelson Mandela after some decades of political incarceration. Fearing perhaps for future insecurity and destabilization of the triumphant ANC, following the all non-racial general elections, President-elect Mandela, despite alleged state-sponsored crimes, involving the South African Police, in the Sharpeville massacres that led to the deaths of defenceless school children, not forgetting the gruesome torture and murder of anti-Apartheid campaigner Bantu Steve Biko, in the 1970s, saw transitional justice, as a viable option for his fractured country.

Indeed as Ghana established its Commission some nine years or after three successive democratic elections, rather than generally during the transition period immediately following conflict and/or an authoritarian regime, Dr. Ken A. Attafuah [ “An Overview of Ghana’s National Reconciliation Commission and its Relationship with the Courts,” Criminal Law Forum 15, 2004, at 125-134] may be right in submitting that perhaps Ghana is the only country to institute a truth commission so long after the political transition has elapsed. This lapse in time, the former Executive-Secretary of NRC argues, initially cast doubts on the necessity for a Commission as Ghana had nominally completed and consolidated its democratic transition? True. Yet, the shared traits of NPP to these regimes, as it shall be shown, is that it rose, among others, as the result of a revolution or some sort of dictatorship associated with prolonged suppression of individual freedoms and gross human rights abuses.

Like in the New South African, in Ghana’s experiment, both reputable international lawyers, renowned criminologists and social commentators, had had their final briefs blotted on the question of whether or not criminal justice, must serve to punish/reform; to deter future acts; show condemnation for the act or to protect society from future danger? The purpose of prison, it is said, is to reform the person and the purpose of trial is to leave a verifiable record. Whether or not a state has to pursue a particular alleged crime within its jurisdiction rests on the available evidence and the sole prerogative of the country’s Attorney-General. It rests on him/her to determine whether the verdict of the case will be useful for the entire society?

The International Year for Reconciliation (1998b) states that “reconciliation” as a past healing is currently crucial to the construction of sustainable peace and is as a profound process of dialogue between conflicting parties, leading to the recognition of the “other”, and respect for his or her differences, interests and values. We are tempted to doubt whether Thambo Mbeki, is not guided by it. Thus, notwithstanding what uneven ancient land distribution might have meant to ordinary South African, justice, in the real sense of the word, gave way to a truth and national reconciliation commission- a process that in the interest of peace and stability, the then Presidential bidder Kufuor, contracted with the NDC not to “probe all crimes” (pac)?

Geoffrey Robertson QC (2006), argues that “set up by reforming- generally- democratic- governments that have just taken over from brutal military rulers or dictators or have emerged from brutal civil wars. … and used as alternative to justice.…truth commissions have reported enough of the truth to discomfort the perpetrators of crimes against humanity who still hold rank in the military and the police: their continued influence frightens politicians, who invoke the ‘interests of national reconciliation’ as an excuse for granting amnesties and pardons, despite emerging evidence of their guilt.”? Cuevas and Rojas (et al, 2002) write that considerable value is added to the national reconciliation project when perpetrators willingly acknowledge their wrongdoing and, even more so, when they apologize to those harmed by their actions. Yet, in Chile, a victim had stated that reconciliation was not possible while those men keep justifying their crimes … ((and)) remain loyal to their pact of silence.”

Yes, Freeman and Hayner submit that even where a truth commission is established, there is no certainty that it has been established with the proper motives or that it will achieve the many potential benefits. Thus, a government may perceive a truth commission as a vehicle for the indirect pursuit of political vendettas or as a way to delegate responsibility to others for difficult tasks that it is not willing to undertake. So, it came as no surprise when sympathizers of the P(NDC dubbed Ghana’s NRC as conceive by NPP, as “Nail Rawlings Commission”.

Thus, the NDC followers, had argued before, during and after the NRC hearings that as far as national security was concerned, they see no shortcomings of their party founder- Rawlings, vis-à-vis gross human rights abuses that occurred under his watch. We may be persuaded by the recent decision of the International Court of Justice (ICJ) on the former Yugoslavia, vis-à-vis Ex-President Slobodan Milosevic’s involvement in the killings and tortures in the FRY.

In this Case, the Court recognised that leaders might not necessarily be guilty for every wrongdoing that happens in their countries. From this premise, Slobodan Milosevic, whose judgement came after his death, was not held accountable for every atrocity that occurred in the Federal Republic of Former Yugoslavia vis-à-vis his bid for a Greater Serbia in the Balkans. Leaders might be guilty for events that they had been indirectly or effectively in control. For example, what fixes Pinochet, with personal responsibility, per Robertson QC, is that he set up an organization- DINA- within the military to supervise the operations of torture centres under directorship of Col. Manuel Contreras, who reported daily and directly to him.

Yet, at the NRC hearings, an attempt to nail Rawlings to some of the most inhumane, grievous and atrocious human rights abuses- such as the killings of the three fetish priests in the Volta Region, the three High Court judges and the retired army major and perhaps most significantly, the arrest, interrogation, trial and the executions of Tekpors, Kyeremehs and Others (the Treason Trial of 1986), as merciless portrayed in the NRC Final Report (October, 2004), was “legally” perceived as glaring political blasphemy, if not a calculated witch-hunt.

In his trial, Tony Tekpor, who was sentenced to death on 15th August, 1983, in connection with the abduction and murder of the judges/army officer implicated some top-brass within the PNDC, yet, his pleas were ignored. The ex-soldier had asked the then Attorney-General, George Aikins, whether he really feels sympathy for his own colleagues who were murdered in cold blood. His execution, according to NRC Final Report, came two days earlier before the final judgement, which according the Commission, constituted a gross violation of his right to a fair trial as his trial was still in progress. But this was not the only agony. In the confession statements taken by Detective Inspector James Kofi Atopley (the Treason Trial of 1986), Kyeremeh and Others had objected their charges on the ground that they were not voluntary procured but rather, were extracted under a series of tortures over a long period between their arrest and the making of the statements, that violated the existing Ghanaian law.

The laid down procedure as provided by the Evidence Decree, 1975 (NRCD 323) section 6(1)(2)11 states that “the procedure to be followed when such objections are taken is for the adjudicating body to rule on the admissibility of each document there and then and to exclude it if it is found to be inadmissible”. The PNDC, however, enacted the Public Tribunals Law, 1982 (PNDC L 24) to coexist with the regular courts to try criminal cases with dispatch, as against the regular courts, which according to the NRC, were characterized by undue delays. Thus, public tribunals were not obliged to observe the regular rules of evidence and criminal procedure and that until 1984, originally, cases tried by them were not subject to appeal (see, (NRC, October 2004), Vol. 1 Chap 4…)

In this case (the Treason Trial of 1986), Peter Nanfuri- the then Director of Bureau of National Investigations (BNI), is reported to have complained bitterly after the trial over how the Bureau had been powerless to restrain the activities of the commandos. It remains a mystery to most Ghanaians as to how these alleged men bull-dozed their way through the metal gates of these premises. Yet, we might have been persuaded by video footages from embedded journalists in Basra, Tirkrit or elsewhere in Iraq- here, some “undisciplined servicemen and women”, breaking the chain-of-command by taking the laws into their hands.

It was, perhaps, this very established reasoning or precedent that any attempt to nail Flt.-Lt. J. J. Rawlings- the then Commander-in-Chief of the Armed Forces, to the abductions and killings of the three fetish priests, the High Court judges and the army major and indeed some of the gross human rights atrocities, alleged to have committed by some of our security forces, scattered within our country, were “legally” construed as glaring political/individual witch-hunt. On this score, effectively, could we predict that President J. A. Kufuor might also not in a foreseeable future, be liable for the murders of the Mobilas, the Ya Na and his 40 kinsmen?

II. STATE RESPONSIBILITY

Madam Ama Benyiwa Doe and Dr. Tony Aidoo are two known NDC fire-brands on the National Reconciliation (NRC) and the Public Accounts Committee (PAC) reports. Andrew Awuni is a renowned journalist, presidential press secretary and NPP faithful. Like his NDC counter-parts who see everything rising roses about P(NDC), Andrew and his Socrates, who while usurping administrative credits from civil servants, believe strongly that maladministration under the ruling NPP, ought indeed not to be seen as political indictment?

While transitional government might exploit past human rights abuses and solidarity that it enjoys from the vast majority of the general public to discredit its predecessor regime, so as to perpetuate its desired firm grip on power, research shows that most of these governments erroneously, ignore or are adamant to the threats that they could pose to their very existence. The mixed-blessings are that while political cross-pollination might create tension within the state, civil or public servants, here, those who are still within the security services and are sympathetic to the past regime might expose the administrative improprieties that the ruling government might attempt to suppress? Are we not quizzed by the Attorney-General’s saga?

Political deviance is a disturbing fact about some of our statesmen and women, vis-à-vis allegations against their political whammies. We might have observed from various radio talk-shows and press conferences. Yet, the ordinary Ghanaian, Fordjour, included, may risk at all heights and costs, to redeem the faces of these functionaries even where glaring public opinion is against them. But must we expect spectacular wonders in a transitional society?

In Uganda, the Commission of Inquiry into Human Rights Violations (CIVHR) was specifically, forbidden to examine violations which had occurred after January 1986, when Museveni came to power. However, many Ugandans, per Quinn (2003), continued to suffer injustices at the hands of his regime, minimizing the relevance the Commission had for the ordinary citizen. But who says it is President Museveni alone? Former Chancellor Helmut Kohl once faced criminal investigation over “suspicions of embezzlement, fraud, and money laundering. The Chancellor, according Ulrich Rippert of World Socialist Website (December 1999), admitted accepting illicit contributions which he channelled into conservative Christian Democratic Union (CDU) party’s finances but refused to reveal the sources of the donations.

At that time, Karlheinz Schreiber- the German Canadian-based weapons dealer, had, according to the report, conceded handing over a suitcase stuffed with cash- 1 million in thousand mark bank notes- to the then-CDU treasurer Walther Leisler Kiep and Kohl’s confidante Horst Weyrauch. Around this time- Judge Joachim Plass, ordered Peter Graf- the father of the tennis star Steffi Graf, guilty on tax evasion charges. While Steffi- the once top-ranked tennis player was exonerated by the Mannheim Court, ruling that she had taken no active part in her father’s misdeeds, Father Graf was jailed for three years and nine months. We might have also heard about how Tony Yeboah of Bundesliga fame, was threatened with imprisonment over (tax evasion) his transfer from Eintract Frankfurt SV to Hamburger SV. How do we apply St. Augustine’s interpretation of “state without justice” in Our Homeland?

III. THE JUSTICE STRUGGLES One of the dangerous traits of transitional societies is deviance- from both the incumbent and the immediate-past government(s). Deviance, in the words of Green and Ward, is widely used but seldom defined but on the face of it, it is behaviour which infringes a social rule. Deviance results from the application of a rule to an act which is not an inherent quality of an act, but inheres in the relation between an act and a social audience (Becker, 1963). We have no evidence to our case but could it not be NDC disciples flooding courtroom and NRC hearings in solidarity with their heroes and heroines or NPP die-hards confusing current issues and catastrophes such as energy crisis, embezzlement and floating/flying cocaine in our territory?

Indeed, Jessop (1982) argues that the state does not always or even in the majority of cases act as a unitary force but rather a band of institutions which do not necessarily share a single set of interest and goals. Yet, in Western Europe, it is said that some particular sub-units will adopt deviant goals? Thus, the operative goals of an organisation- which need not be the same as the individual motive of the actor are those that its member truly work together to achieve, which may or may not reflect the goals the organisation publicly proclaims? (Punch 2003)

A soldier in war may commit rape purely for reasons of personal gratification. Yet, it is argued that this could contribute to organisational goals such as demoralising the enemy or promoting ‘ethnic cleansing’. The organisational goal may be of little importance to the soldier himself, but may be an important reason for his comrades and superiors to turn a blind eye to his action. If, on the other hand, the soldier is promptly court-martialled, it may be inferred that he acted contrary to an important organisational goal- perhaps the army’s goal of presenting itself as the liberator of the local population, here, fighting bribery and injustices?

IV. DISSENTING VIEWS AND ADVICE

On retirement, President Kufuor dreams of Ghana with a level-headed leadership which can consolidate his economic and human rights credentials. Fordjour yearns for equity and fairness. As Chief Justice Georgina Wood said in Koforidua, “legal profession was all about the pursuit of justice, hence the need for its practitioners to stay clear from all corrupt practices... we need an incorruptible Bar so that we can have an incorruptible Bench” and Ghana where justice might not be dispensed or delayed at the whims of mobs and ideologues?

Asante Fordjour LLB (Hons), LLM International Law and Criminal Justice



Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.