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Opinions of Saturday, 19 July 2014

Columnist: Alifo, Eric Delanyo

Our Courts Must Stop Jailing Innocent Citizens

by
Eric Delanyo Alifo, Founder,
HelpLaw Ghana (www.help-law.org)

As long as our courts continue to apply a draconian law that allows the police to write confession statements for suspects, using officers of the same police, or people under their influence as "independent witnesses," I cannot be convinced that the courts are not incarcerating innocent citizens, especially, those who are convicted on the basis only of confession statements tendered in court against them by the police. These confession statements are largely dubious. Unfortunately, once one of such statements is tendered against a suspect, he is on his way to prison. Our courts accept them as the gospel truth and convict these unfortunate citizens, who do not write and read the statements by themselves before signing or thumb-printing them.

Most of our investigators do not do any investigation at all. They only find ways to write confession statements for suspects, sometimes by torturing or tricking them into admitting charges, which they would never voluntarily admit, or sometimes by completely fabricating the confessions and making the suspects to sign them. Prosecutors would then run with speed to read these phony statements to judges without more, and pronto! the suspects would be convicted.

If a suspect challenges a confession statement tendered in court against him, the court would conduct a mini trial to probe the authenticity of the statement. But the burden on the prosecution to prove the validity of the statement is very simple. They will only call another police officer who would pretend that he was an "independent witness" when his colleague was taking the statement from the suspect, and indeed, the suspect has said all that was written in the statement against him. The contents of these statements are mostly outrageous. One cannot easily imagine why someone may say such things about himself voluntarily but come to court to deny them. Yet, most of our judges believe whatever is in the statements and convict the suspects, and if the charge is robbery, they imprison them for 40 years, 50 years, 80 years, etc.

It is very frustrating as a lawyer to notice clearly an investigator has fabricated stories against your client and a judge would believe all of it and jail your client. Several prisoners have been incarcerated in this cruel manner. I am not aware of any law in Ghana that explicitly authorizes the police to witness a statement for a suspect when a police officer is the one writing the statement for the suspect. Whatever laws that exist on this subject are opened for interpretation by the courts, and the interpretation that the police can be "independent witnesses" when they are writing statements for a suspect is the most absurd and oppressive.
Below is what Dotse, JSC said on this subject in a unanimous opinion of the Supreme Court in Kwaku Frimpong v. The Republic, Part 45 [2012] 45 GMJ 1.

[An independent] witness must not be subordinate to or under the authority, control or influence of the person investigating the crime . . . . In short, an independent witness must not be someone who is so closely connected to the Police as to make him more or less dependent on the Police. Such a scenario will defeat the purpose for which the law was enacted. (Emphasis mine).

The learned Justice was discussing the controlling provision on this subject, i.e. section 120(2) of the Evidence Act, 1975 (Act 323). It provides in subsections (1) and (2) that for an out-of-court confession to be admissible in court, it must have been made voluntarily in the presence of an independent witness. This law does not define who can be an independent witness. It leaves that for interpretation by the courts to determine whether it is appropriate for a police officer to be an independent witness when his colleague officer is writing a statement for a suspect that cannot read and write. This law is not particularly unfair. However, there is an amendment, the Evidence and Criminal Procedure (Amendment) Decree, 1979 (SMCD 237), which creates room, unreasonably, for the police, or a member of the Armed Forces to be an independent witness, and removes an original requirement that the suspect must approve of the independent witness. This amendment is what is creating so much confusion in the minds of investigators, prosecutors, and even some judges, who are allowing police officers to write confession statements for suspects, with their colleague officers as "independent witnesses." Below is the exact text of the amendment.

The Evidence Decree, 1975 (N.R.C.D. 323) is hereby amended by the deletion from subsection (2) of section 120 thereof of the following words: "(other than a police officer or member of the Armed Forces) approved by the accused."

Frankly, this amendment does not say the police must be independent witnesses when they are writing statements for suspects. At best, it creates room for a court to allow the police or military to be independent witnesses when necessary. It will therefore be absolutely lawful and sensible for our courts to reject the situation where a police officer shall write a confession statement for a suspect with another police officer as an independent witness. The original version of section 120 (2) of the Evidence Decree, 1975 (NRCD 323) was as follows:

Evidence of a hearsay statement shall not be admissible under subsection (1) . . . unless the statement was made in the presence of an independent witness (other than a police officer or member of the Armed Forces) approved by the accused."

This original version of the law was a better law that would guarantee justice for accused persons who cannot read and write. However, some wicked bully decided to take out the part that excludes the police and armed forces from pretending to be independent witnesses when their colleagues fabricate confession statements for suspects. They also took out the requirement that the suspect must approve of the independent witness. In effect, the suspect has no say at all about who witnesses his statement. This is incredible! And some people will still doubt that our courts are jailing innocent citizens. Our criminal justice system allows this and many similar oppressive practices and procedures to confine our youth to prison for many years under doubtful circumstances. If we wish to administer proper justice to our citizens, we must require a high standard and diligence from our investigators, and we must immediately repeal SMCD 237.

If the courts continue to use SMCD 237 as an excuse to allow the police to write confession statements for suspects, while the same police pretend to be independent witnesses, there shall continue to be a great likelihood that innocent citizens would be jailed for crimes they have not committed. If innocent persons are imprisoned for the crimes of others, the actual criminals shall continue to be free, and may be encouraged to commit more crimes. In the end, the purpose for which the system allows tricks and torture to be used to find wrongdoers shall be defeated. The surest way to eliminate this danger is to repeal SMCD 237 immediately and restore the original version of section 120 (2) of the Evidence Act.

I hope somebody is reading and wants to see greater justice for all Ghanaians.