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Opinions of Tuesday, 15 February 2011

Columnist: Damoa, Adreba Kwaku Abrefa

Stage-Managed Public Criminal Trials in Ghana: Are They Justice Delivered?

Criminal cases are of State interest hence prosecuted by concerned State Security Agencies, usually by the Police, Customs etc depending on the jurisdiction they fall into. When the State’s interest is militating against the defence of a suspect, the fact that State agencies with prima facie upper hand suggests at first hand the element of robust State control and manipulation yet the cost of high burden of proof yoked on the prosecution in conjunction with a supposed equanimity of Judges come to balance the scale for a supposed fairness in most judicial decisions. These not-withstanding, in several places across the world, State manipulation could take either of three forms such as torture of suspects whiles in custody of State security agencies, oblique or direct interference with Judges’ decisions or legal aided lawyers paid by government not pulling their weight in their defence, all these provide stage-managed tint. Even in some circumstances, humans as we are, the biases and prejudices of some privately hired lawyers could inhibit providing their best as defence lawyers. With all these deemed quasi stage-managed criminal trials, there are those that are overtly trials of stage-managed extraordinaire leading to aborted justice.
Criminal trials heralded by governments without bias or prejudice yet flawed by other factors are of primordial origin. The gun powder plot of 1601 is a classic example in English legal and political history in which Guy Fawkes, Robert Keyes, Thomas Bates, John Grant and nine others were found guilty of an attempted plot to blow the House of Lords into rubbles. In the process, an innocent Catholic priest, Father Henry Garnet was convicted and sentenced to death because he was presumed to have known of the plot through confession which Garnet was prevented from informing the authorities by the absolute confidentiality of confessional rules. Similarly, in the impeachment trial of Andrew Johnson in the United States, politics, prejudice and procedure marred the process. What made the trial 'disgraceful' was not that the charges were altogether without colour of law but that the proceedings were reeked with unfairness and palpable prejudgment of guilt.''

Regarding torture, on December 21, 2004, the American Civil Liberties Union released copies of FBI internal memos they had obtained under the Freedom of Information Act concerning alleged torture and abuse at Guantanamo Bay, in Afghanistan and in Iraq. One memo dated May 22, 2004 was from someone whose name was blanked out but was described in the memo as “On Scene Commander – Baghdad”. He referred explicitly to an Executive Order that sanctioned the use of extraordinary interrogation tactics by U.S. military personnel. The methods explicitly mentioned as being sanctioned are sleep deprivation, hooding prisoners, playing loud music, removing all detainees' clothing, forcing them to stand in so-called “stress positions”, and the use of dogs. The author also claimed that the Pentagon had limited use of the techniques by requiring specific authorization from the chain of command. The author identifies “physical beatings, sexual humiliation or touching” as being outside the Executive Order. This was the first internal evidence since the Abu Ghraib prisoner abuse affair became public in April 2004 that forms of coercion of captives had been mandated by the President of the United States
The guidance in the Canons of Judicial Conduct comes from general language applicable to judges in all cases. Judges are required to uphold the Integrity and Independence of the Judiciary and avoid Impropriety and the appearance of impropriety. The concepts are intertwined with the obligation that judges act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary Judges must perform their duties impartially, competently and diligently, concepts requiring judges to perform their duties fairly and impartially and without bias or prejudice, while remaining patient, dignified and courteous.

In the Kulungugu bombing trial, a fair playing ground was provided by the State for a fair trial in expectation of government securing a conviction in its favour but the Alhaji Kow Swanzy-led prosecution crushed under the weight of its burden of proof which legally and accordingly acquitted and discharged the suspects whose conscience could only tell whether they had to escape conviction and punishment or not. Dissatisfied with the judicial decision reached and explained by the then Chief Justice Sir Arku Korsah, the Nkrumah-led CPP government quickly intervened to “kill a cat” that had acted and decided according as he should by law yet contrary to constitutional provisions governing Judges, Chief Justice’s head had to roll. Conviction was subsequently and eventually forcefully secured by the government through its heavy-handed upper hand manipulation of the Court and suspects were gaoled contrary to juridical rules governing appeals and retrial such as open bias, fresh evidence etc. Similarly, in the Ben Salla case, a similar fair ground was provided for the law to take its natural course, the prosecution led by Victor Owusu failed to expose Salla’s misdeeds and corrupt practices as Head of GNTC but the Prime Minister Dr K A Busia was dissatisfied as did President Nkrumah but there was a sharp departure here. Though Salla was not reinstated, the law of equity applied in the circumstance and he was compensated however modest and in whatever way; no “cat was killed” thus the Chief Justice Mr Justice Apaloo was not sacked; the blame was on the prosecution who failed to deliver. Whereas the above Ghanaian cases could be taken for some form of justice delivered contrary to juridical processes in some way, there are glaring examples of justice aborted across the globe, Ghana being a major player.
On 30th June 1982, three High Court Judges and a retired Major in the Army were abducted and murdered at the Bundase Shooting Range. The Rawlings-led PNDC government initially shed crocodile tears by pretending sincerely to be innocent of the scandalous plot to murder the Judges and the rtd Major whom both Rawlings and Kojo Tsikata bore a bitter grudge and had vowed to spew out vindictive measures against them. To “bell or kill the cat”, over-zealous with so-called revolutionary murderous animus and foolhardiness, Joachim Amartey Quaye was spotted by Rawlings and Tsikata to be the right person to be goaded on to play the 1482 legendary Archibald Douglas of Scotland, the 5th Earl of Angus. Amartey Kwei, in his capacity as member of the neo-Nazi PNDC as well as his assumed position as captain of murderous mission accordingly made his selection of murder squad comprising Amedeka, Michael Senyah, Tekpor Hekli and Johnny Dzandu who had been engaged by the National Security to carry out a number of murders in the Volta Region were given the Guernsey for the job. After accomplishing the task, Amartey Kwei’s membership of the PNDC continued as the leader of the government appealed to the public for witnesses to come forward and provide information for the perpetrators to be apprehended and punished.
When eventually the government realised there was no more room to hide Kwei and the deed he and his accomplices had been wheedled to do, as suspects, they enjoyed Royal treatment in the hands of the Security Agencies else the cat would be let out of the bag for Rawlings’ and Tsikata’s double standards to be exposed in the early stages. Whereas people like Kyeremeh Djan Alidu Gyiwa and many others were tortured for supposed confession and admission of mea culpa, Amartey Kwei and others were given special treats during their in-trial custody. Evidence given in his own volition before the Justices clearly stated that the instruction to abduct and murder the Judges and the rtd Army Major, written in red ink and signed by Kojo Tsikata of the National Security, but as overt State manipulation is evident, the Court, as would normally would be bound to do, did not act on this vital evidence but only flashed it in the face of the public. Out of fear, the Judges chose not to compromise their precious lives for equanimous justice delivery following a “cats-killed” matter over which they were presiding as Judges. Vital evidence that would implicate John Rawlings, Tsikata and Kunadu Agyeman Rawlings were ignored but simply played around the actus reus which indeed Kwei & co had committed as “fall guys”. Today, John Rawlings walks tall in Ghana and brags about justice as if he is the (c5th BC) Aristides.
Between 1999 and 2000, 34 women were murdered in Accra in a same style and corps display yet the security Agencies could do nothing to apprehend the mystery Dracula-style killer. One man in the person of the former 1st citizen of Ghana who had once vowed under oath to protect all citizens of Ghana, apparently knew the culprits but declined not to mention who they were up to this day. Is it because he has out-lived his vow? Is he an active or passive citizen or what or is he lying to Ghanaians? For how long therefore can he continue in this deceptive conduct to the detriment of Ghanaians?
In 2003, in Yendi, an incurable chieftaincy factional conflict cost the life of the Paramount Chief and 34 others. The Kufuor-led NPP administration set-up a Commission of Inquiry to inquire into the circumstances that led to the feud as well as identifying the perpetrators of the incident. Indeed no specific culprits were named for prosecution and conviction. In conflicts of this nature, the best thing to do has always been to set-up a Commission of Inquiry as a prelude to criminal investigation and prosecution. It is therefore improper for the John Mills administration to set-up a Court not based on the findings of the Commission of Inquiry’s report. All said and done, assuming the NPP administration failed to do proper investigations to find the culprits, John Rawlings claimed to know the perpetrators who he never named but rather speculated his supposed killers out of political expediency not-withstanding the fact that the fallen were casualties of deadly family feud on both sides. Police and judicial independence in Ghana have been a bane of justice delivery yet we fail to appreciate the level of injustice amongst ourselves as one nation, one people with a common destiny. Since selective justice harms the prospects of peace it behoves that as in the words of President Obama, Ghana strengthens her State institutions and this can only be done through granting them their independence of political control and politicians. Nothing is ever too late for criminal prosecution so persons involved could be tried even posthumously and sentenced to face punishment as in the case of Cromwell.

Adr?ba Kwaku Abrefa Damoa LLB; MPhil (London) London UK