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Opinions of Thursday, 27 March 2014

Columnist: Korang, Daniel

The Rule Of Law And Instant Justice In Ghana

A Lamentation

Daniel Korang
Ghana School of Law, Accra


After our return to constitutional democracy in 1992, it was thought that acts of violence, lawlessness, impudence and civil brutalities were effectively censured by the 1992 Constitution. Unfortunately, however, the Forth Republic has been invariably ruined by a culture of lawlessness and other constitutionally aberrant manifestations which characterised bygone undemocratic eras. Instant justice, otherwise known as mob action, is so commonplace in Ghana that our incipient democracy and the rule of law suffocate under its intense pressure. The act takes many forms and shapes: flogging suspected robbers to death; slashing suspected criminals; stripping suspects naked and beating them with blocks, sticks and iron rods till they die; subjecting suspects to humiliating and degrading treatments and sometimes setting them ablaze. Mob action is gradually assuming a posture of an unquestioned culture of executing instant ‘justice’ without recourse to the court. Mob action is steadily developing into an ugly tumour on the near immaculate face of our present 1992 Constitution.

Mob action, put bluntly, is an embarrassment to our democracy. It casts an ugly slur on our national identity. It represents imprints of visible tokens of incivility and brutishness. It is a criminal method of punishing suspected criminals. Instance justice is sordid and repulsive; its frequency represents a reversal of our democratic laurels. It is a flagrant departure from the rule of law; it is a major democratic defect; it is an evidence of the breakdown of law and order, and reveals the inadequacies of our system of justice. It is a major onslaught to our criminal justice system, and an embarrassment to the country. The country is likely to drift deeper into the quagmire of lawlessness if the problem of instant justice is not checked immediately.

Almost invariably, no month ends without a suspected criminal being lynched by an angry mob. The dangers of mob action on our country are too numerous to name. One inherent danger of this sordid act is the real likelihood of victimising innocent persons who are mistaken for criminals. An innocent person fleeing from a crime scene is likely to be mistaken and lynched.

Technically, instant justice flouts the system of punishment for criminal offences. Under our law, penalties for criminal offences are statutorily prescribed and they vary with the gravity of the offence. Thus article 19 (6) of the 1992 Constitution cautions that “[n]o penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.” For instance, it is unconstitutional for a person suspected of stealing - which is only a second degree felony- to be lynched. In any case, the power to punish criminals is the sole preserve of the judiciary and not an angry mob (vide article 125 of the Constitution). Mob action is therefore an unwarranted usurpation of judicial power.

Lynching of suspected criminals also hampers the efforts of the police to stem the tide of crime in Ghana. Most criminal activities in Ghana are complicated and syndicated. They are planned and executed by ganged criminals. The arrest and trial of a few of them may lead to the arrest of other participants of the criminal enterprise. Lynching therefore breaks the chain of police investigation and stultifies the efforts of the security agencies.

The 1992 Constitution and Mob Action

Mob action has the potential of burgeoning into an intractable evil which, if not checked, would ultimately undermine the1992 Constitution, and toll the knell of our fourth brave democratic effort. Chapter 5 of the Constitution contains a catalogue of fundamental human rights. Article 13 of the constitution guarantees the right to life. Clause 1 of article 13 provides that: “No person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted.” The words of the provision are clear and unambiguous. It is only the court that has the power to order that the life of a person convicted of a criminal offence punishable by death should be taken. Lynching of suspected criminals is an affront to the Constitution and the rule of law itself.

Mob action also violates the right of persons to dignity. Article 15 (1) provides that “[t]he dignity of all persons shall be inviolable.” Clause 2 states that “[n]o person shall, whether or not he is arrested, restricted or detained, be subjected to - (a) torture or other cruel, inhuman or degrading treatment or punishment; (b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.” It is only convicted persons who may lawfully be executed or subjected to torture. Article 15 (3) of the Constitution provides that “[a] person who has not been convicted of a criminal offence shall not be treated as a convicted person and shall be kept separately from convicted persons.” Mob action is unconstitutional and unacceptable in our constitutional democracy.

The reprehensibility of mob action becomes more apparent when the act is considered in the light of the hackneyed legal principle of presumption of innocence enshrined in the 1992 Constitution. Article 19 (2) (c) provides that, a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty. The presumption of innocence implies that a person suspected of having committed a crime is deemed to be innocent until he has been properly arraigned before a court of competent jurisdiction and has been convicted of a crime. It is submitted that the venue and modus operandi of mob action are wrong, illegal and unacceptable. Lynching of suspected criminals is a patent indictment of fair trial which is the bastion of all truly free and civilised societies. More importantly, lynching is a monstrous breach of natural justice. A key principle of natural justice is that a person cannot be condemned without being given the opportunity to be heard. Lynching deprives a suspect of the right, time and facilities for the preparation of their defence contrary to article 19(2) (e) of the Constitution.

It should be remarked that instant justice qualifies as a criminal offence under our Criminal and Other Offences Act, 1960 (Act 29). Insofar as the harm caused in mob action is unlawful, the act may qualify as murder under section 46 of Act 29 where it leads to death, or where death does not occur, the mob action may constitute criminal assault and battery under sections 84 and 86 or causing unlawful harm under sections 69 and 76 of Act 29.

Causes of Instant Justice

In our part of the world, the causes of mob action are too numerous that one may readily, and justifiably so, endorse the act. The foremost motivating factor is inordinate delay in justice delivery in Ghana. Excessive delay in disposal of simple criminal cases gives rise to mob action and self-help. A notorious reason for delay in justice delivery is unnecessary adjournments. The Court of Appeal in Deegbe v. Nsiah And Another [1984-86] 1 GLR 545-552, expressed a firm judicial abhorrence to delays in justice delivery, per Edusei J.A.:

“This simple, straightforward case has lasted almost eight years now, from 10 August 1977 to 25 July 1985. This is an abuse of the court’s process. It may conjure up in the minds of the public a sort of judicial phantasy, and this is not good enough for the administration of justice. We hope that lawyers will help to achieve speedy justice for it is said that "justice is sweet if it is swift."”

In the magistrate courts the delays are in some cases very disturbing, and a careful observation has shown that the greater part of the blame should be put on the police. It is true that in complicated criminal cases, the police need time to do thorough investigation, but in simple criminal cases there is no justification for prolonged investigation. The unwillingness of people to act as witnesses in criminal cases also accounts for the delay. The judicial process in Ghana leaves much to be desired. If we desire to stem the tide of mob action, then we need to spruce up our judicial system.
Another reason for mob action is the perceived public dissatisfaction with the system of criminal punishment. Even though the limits and extents of punishments for offences are statutorily prescribed and defined, they are very largely subject to the discretion of the court. When judges exercise their discretion to impose minimal sentences in hideous offences, people become dissatisfied and appalled. With this dissatisfaction, mob action becomes the best alternative to inflict punishment commensurable to the particular offence. However, it is hard to believe that instant justice deters criminals.
In the recent case of Frimpong alias Iboman v Republic (2012) SCGLR 297, the Supreme Court observed that, “[t]he greatest deterrence to our mind is the swift but unlawful mob action that society unleashes upon those suspected of committing crimes especially, stealing, robbery and ritual murders. If what happens to suspects in robbery cases is anything to go by, there would have been no robbery or stealing cases by now.” Mob action serves no useful purpose.
Judicial and police corruption in Ghana is another disturbing contributory factor to mob action. Bribery, corruption, and the unprofessional conduct of some policemen and judicial officers coupled with ineffective police investigation excite mob action. The Ghanaian populace has little confidence and trust in the Ghana police, the judiciary and other security agencies. Most policemen are criminal accomplices. Why should a suspected criminal be delivered to the police only for them to enrich themselves by taking bribe and releasing him without trial or for the Attorney-General to enter nolle prosequi on the basis of lack of evidence? It may, I think, be proper to suggest, albeit halfheartedly, that mob action is appropriate in Ghana where some policemen form alliance with armed robbers and other criminals to unleash untold atrocities on society. Sadly, some armed robbers undertake their operations not only in police and military uniforms, but also with weapons specially meant for use by the security agencies in Ghana. To put it more bluntly, if policemen and members of other security agencies are known to assist criminals, and sometimes openly form gangs to commit criminal acts with brazen effrontery, then there is no point in reporting alleged criminals to the police. After all, some of the men in uniform are equally criminals. The police must live up to expectation so as to deserve the confidence of Ghanaians.
Instant justice is a democratic deficit and a bane of our criminal justice system. When the judicial process is bogged down by factors such as delay and corruption, then we should expect that people are likely to take the law into their own hands and administer ‘justice’ in the manner they deem fit. The problem of instant justice needs to be tackled concertedly. The media should educate people to refrain from the unlawful act of mob action and report alleged criminals to the police. The courts should also ensure expeditious trial of cases so as to whip up public confidence in the judiciary. In this regard, there is the need for active co-operation of the Bench, Bar, Police and witnesses. We also need to have a critical look at the Criminal Procedure Code with the view to dispensing with archaic procedures which hamper speedy trial. Individual should also learn to respect the law and co-operate with the police and court.
In conclusion, it is, I think, generally accepted that no system of democracy deserves its name if people are free to take the law into their own hands and execute instant ‘justice’ without recourse to the court. In our constitutional arrangement, instant justice is abject injustice. The rule of law must prevail.

Daniel Korang
Ghana School of Law, Accra