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Opinions of Sunday, 15 November 2015

Columnist: Ata, Kofi

The Anas Expose: Is Mr Martin Amidu Out of Bounds?

By Kofi Ata, Cambridge, UK November 14, 2015

Throughout last week Mr Martin Amidu, the second Attorney General and Minister of Justice under the late President Mills who was sacked for exposing government collusion in the Woyomegate and subsequently won public admiration as Citizen Vigilante Anti-Corruption Campaigner started a media war with Anas and Tiger Eye PI with a number of allegations in an attempt to discredit the exposure of the judicial scandal and perhaps, give the corrupt judges a defence. This is an analysis of the actions of Martin Amidu.

For reasons of time and space, I will avoid quoting all his allegations as they are well known to Ghanaweb readers. In brief, Martin Amidu is claiming that Anas and Tiger Eye PI were commissioned by government and therefore the evidence gathered could not be used against the judges, the recordings breached the privacy of the judges and Private Eye PI is an illegal entity and therefore all their actions are unconstitutional and null and void.

Mr Martin Amidu ended the week with some ridiculous allegations and demand on Joy Fm’s Newsfile programme that, no Northerner could be elected president in the next two to three decades because President Mahama, a Northerner has presided over a corrupt government. He also claimed that Justice Marful-Sau the Appeal Court Judge who sat as High Judge on the Ghana@50 trial was overlooked by President Mahama for appointment to the Supreme Court because he dismissed the case against Wereko Brobbbey and Mpiani. Finally, he challenged Anas to one-to-one radio debate between the two of them.

I will first deal with the claims on Newsfile. Before that, let me put on record that I have a lot of respect for my former senior colleague and still respect him for the work he is done for Mother Ghana (he was far above me in our PNDC days). However, I profoundly disagree with him on the Anas and Tiger Eye PI the judicial scandal issues. I do not speak for Anas but Anas should reject outright his demand to a head to head radio debate with him. The judicial corruption exposure is too serious to be turned into a popularity contest between the two on radio.

Second, I find his statement regarding no Northerner being elected president as simply, racist because corruption in Ghana has no ethnicity. Corruption permeates every fabric of Ghanaian society (North and South, East and West). I am not in any way disputing that President Mahama is presiding or not presiding over a corrupt government.

What shocked me most is the claim that President Mahama punished Justice Samuel Marful Sau by not appointing him to the Supreme because of his Ghana@50 judgement. I was shocked because I expected Martin to know better as a very senior and experienced Attorney as well as a former Attorney General and Minister for Justice. He ought to know that the ruling was wrong in law and what is referred to as “per incuriam” (literally meaning through lack of care). In other words, a mistaken decision of a court given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the court.

In fact, it was the inconsistencies in that judgement which resulted in my first ever article on Ghanaweb on August 21, 2010. A High Court Judge who disregarded previous cases such as the first Ya-Naa trial which was the direct result of the Wauku Commission of Inquiry? The judge wrongly and unlawfully ruled that those who appear before Commissions of Inquiry as witness automatically gain immunity from prosecution. That was and still rubbish. Just last week, here in the UK a former soldier from the Parachute Regiment was arrested and bailed awaiting potential trial for his role in the Bloody Sunday in Londondery in January 1972 despite appearing as a witness at the Lord Saville Commission of Inquiry into the incident. Commissions of Inquiry are not Truth and Reconciliation Commissions and therefore those who appear before Commissions of Inquiry are not given automatic immunity unless otherwise stated in advance. At best, they are given plea bargins.

I refer Martin Amindu to what JSC Gbadegbe said about the Ghana@50 judgement in the most Supreme Court judgement on Prof S Kwaku Asare v Attorney General in October 2015. “I have not disregarded the decision of the High Court in case Number ACC 39/2010 entitled The Republic v Charles Wereko Brobbey and Another, an unreported judgment of Marful Sau (JA) dated 10 August, 2010 which was cited to us in the written brief submitted by the plaintiff. Although the said decision is of persuasive effect, I am unable to agree with the statement of law contained in the said judgment for there as on that the learned judge did not advert his mind to the clear effect of article 280 (2) before reaching his opinion on the nature of commissions that may be constituted by the President under article 278 of the Constitution, a default which brings the judgment within the category of judgments that are “per incuriam” (JSC Gbadegbe on page 66 of the written decision).

If Martin Amidu’s logic is accurate that Justice Marful Sau was overlooked for his decision, could it also be inferred that, he was highly recommended because of that same decision? Martin Amidu, your allegation against President Mahama on this matter sacks of either envy or because you have been excluded from government. Since this case is pending before the Supreme Court I will make no further comment.

Regarding the claims of illegality and unconstitutionality of the modus operandi of Tiger Eye PI in exposing the corrupt judges, as I have said in previous articles, the public interest is such that the end justifies the means. In fact, this is what the majority decision of the five Supreme Justices including the Chief Justice in the Prof Asare v Attorney General mentioned above said. Second, I am also of the view that there is no clause in the 1992 Constitution that guarantees the right to citizens to commit crime in privacy. Therefore, the argument by Amidu and others that the privacy of the corrupt judges was breached by Tiger Eye is neither here nor there.

Finally, the actions and omissions of the judges exposed by Tiger Eye were criminal. Indeed, the judges knew that they were acting criminally and therefore the defence that they were entrapped by Tiger Eye is an illegal defence, “ex injuria sua nemo habrere debet" (a wrongdoer should not be enabled by law to take any advantage from his/her actions) or “ex turpi causa non oritur actio” (from a dishonourable cause an action does not arise).

It’s sad and perhaps, a tragedy that the anti-corruption campaigner has turned 180 degrees to discredit one of the most important corruption exposures in Ghana’s history and in so doing attempt to give false defence to the corrupt judges. His misguided attempt will fail because of the reasons I have given above. However, Ghana being Ghana, I am worried that the judiciary might buy into Martin Amidu’s conspiracy theory that it’s the Executive’s attack on the Judiciary.

What Martin Amidu has set out to do is very dangerous and has the potential to destabilise Ghana. If the cases against the corrupt judges are dismissed because of the Amidu conspiracy theories of politicians attacking judges but protecting themselves, the illegality of the entity Tiger Eye PI and the unconstitutionality of its modus operandi, the fight against corruption would be lost forever. The Anas expose is the best chance for Ghana to fight corruption. This is because the Judiciary is the only arm of government best placed to fight corruption. If Ghana has honest and corrupt free judiciary, it can check a corrupt Executive and Legislature more effectively than honest and corrupt free Executive and Legislature. A corrupt free judiciary will also ensure that the laws, rules and regulations are enforced to the letter and that would compel the citizenry to also comply with the laws, rules and regulations. With that, half of the battle against corruption would have been won as citizen would be less likely to demand and or pay bribes and Ghana would be on the road to true democracy, respect for rule of law and socio-economic and political development.

Sadly, Martin Amidu is the greatest obstacle to this noble goal as he has become the de facto Attorney for the corrupt judges and a recruiting sergeant for corruption. Martin, you are on a downward slope to a self-destructive endeavour that could wipe off all your enviable anti-corruption achievements. Enough is enough with all due respect.

Kofi Ata, Cambridge, UK