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Opinions of Sunday, 31 August 2008

Columnist: Antwi, William

The Tsatsu Tsikata Sentencing Chagrin

The Tsatsu Tsikata Sentencing Chagrin And National Matters Arising!

The unfolding judicial saga involving the criminal prosecution of Mr. Tsatsu Tsikata continues to showcase the dangerous times we live as a people. His bizarre conviction has created chaos not only in our body polity but the judiciary as well. It has critically exposed the deep polarization in our dear country along tribal and political fault lines. Intellectual honesty and true justice have lost their allure or otherwise enviable place in national discourse. In fact, apart from feeding the tabloid vial of sensational journalism with its usual vile political undertones, this sensitive national case portrays the weaknesses in the administration of criminal justice in our country and in the instant matter the enforcement of the rule of law by our courts. Indeed, - despite clear and incontestable evidence of judicial shenanigan - some see his politically motivated prosecution and bogus conviction as payback time for his political activities dating back to the June 4 era without acknowledging the larger and deeper systemic problems ailing our criminal justice system.

THE SHAME OF TSATSU’S DETRACTORS!

This case is pregnant with some crazy subplots with the exposure of the dangerous hypocrisy of some individuals who for years have bombarded us with their rule of law credentials. In their crude effort to defend Judge Henrietta Abban’s controversial judgment, they shamelessly trashed the very principles of law and justice they profess to hold dear to their hearts. Their elitist view is that Tsatsu and his legal team continue to game the judicial process by filing "countless" motions and interlocutory appeals. But the sane question we keep asking ourselves is: Isn’t it best legal practice that such interlocutory appeals and motions are dealt with with alacrity by the High Court so that the substantive case can move forward, unimpeded? In their shameless conduct, they forget that Tsatsu Tsikata and his legal team are just players in the judicial football game and that the real referees are our judges. Therefore, how can they be gaming the judicial process if our judges who are supposed to rule expeditiously and judiciously on all these motions and so-called countless appeals are not doing their job? Or is it their uncanny way of indicting the integrity and competence of our justices who are supposed to be men and women of high learning, wisdom and fortitude? In other words, is it their way of tacitly admitting to the superior legal knowledge and talent of Tsatsu’s legal team?

In their annoying anti-rule of law antics, they conveniently forget that it is the legal responsibility of the state and, indeed, the duty of the court to ensure speedy and fair trial. I am yet to come across a legal rule or edict that enjoins an accused person to ensure a fair and speedy trial. Why should the failure or inability of our courts to adjudicate these so-called countless motions and interlocutory appeals be chargeable to and against Mr. Tsatsu Tsikata?

Nauseatingly, they continue to rain abuses and invectives on Mr. Tsatsu for asserting his protected right to seek a fair trial in an era of selective justice. And, what is the essence of a criminal justice system if an accused person is treated like a villain just for prosecuting his right to a fair trial? Why should Tsatsu’s detractors demonize him for using the court’s processes to vindicate his constitutional right to a fair trial? What makes them think that any court worth its salt can foreclose Tsatsu’s right to zealously defend himself by any legal means possible?

It is therefore ridiculous and absurd for any civilized person to blame Mr. Tsatsu Tsikata for asserting his inalienable right to a fair trial as ordained by Article 19 of our constitution. Rather, we should all thank him and his legal team for opening our eyes to many of these criminal law principles and processes we have for so long taken for granted!

FAIR TRIAL OR JUDICIAL PERSECUTION?

Unsatisfied with their momentary victory, otherwise known as Tsatsu’s bogus conviction, and in an extreme show of prosecutorial arrogance, the government through the Attorney General has filed an appeal against the five-year sentence imposed on Tsatsu. According to our Attorney General, Joe Ghartey, the five-year sentence was "not proportionate having regards to the gravity of the offence" Awurade!

There are lawyers and other prominent citizens who have gone on record defending the government’s wayward judicial gimmickry. Let no Ghanaian, man or woman living be deceived: This legally dubious appeal is set to achieve one and only one purpose, namely, to divert needed attention from Tsatsu’s bogus conviction and ridiculous sentence. What our Attorney General knows and we know is that, customarily, superior courts have looked at appeals for enhanced sentences with scorn especially in our kind of discretionary sentencing system where the sentencing judge has a whole lot of discretion in imposing a sentence. It is worth noting here that such judicial discretion is not exercised at a judge’s whim. Rather, it is judiciously exercised within the peculiar circumstances of each particular case because each case is unique in its own right.

No wonder, they take into direct consideration many factors in imposing sentence(s). And this wide range of factors include, but not limited to, Tsatsu’s motive and his moral blameworthiness - and here we are talking about the sophisticated nature and planning of the criminal conduct ( was there any act or conduct on the part of Tsatsu that shows that he intended to hide the transaction?), his level of remorse, his past criminal history, the prevalence of that particular offence, how much was actually loss to the state and its effect on the state’s finances etc etc.

Needless to state here that although motive is not required in proving a crime, it plays a central role when a sentencing judge comes to impose punishment on a convict. Respectfully then, for an individual like Kweku Baako, Jnr to scream at the top of his voice that motive does not matter in setting a sentence is the height of ignorance! A convict may receive a lighter or heavier sentence depending on his motive for committing an offence. Period. If for example, it was established on record that Tsatsu benefitted financially from the purported criminal conduct, then a good judge would impose a heavier sentence and vice versa.

In the instant case, there is no scintilla of evidence - credible or otherwise - on record to show that Tsatsu benefitted from the said transaction which took place in 1991 long after the law under which he was convicted was passed in 1993! Tsatsu’s good motive in investing in Valley Farm is written all over the evidence adduced at the trial. And in trying to garner Tsatsu’s motive, the court can and should take into consideration other investments he spearheaded including the Westel and EcoBank investments from which the government continues to reap millions of dollars!

The question we keep asking ourselves is: What is so grave about this "non-offence" for which he was convicted? Are there aggravating factors that call for an enhanced sentence? If so what are they? In the peculiar circumstances of this special case, can somebody tell me what is so aggravating about this case that calls for an enhanced sentence? Politics? You bet it! The nation is waiting impatiently for the government’s so-called " supporting evidence" for promoting this malicious appeal!

SERIOUS NATIONAL MATTERS ARISING:

This brings us to the crucial role of our judges and prosecutors in adjudicating criminal justice in our country: This sensitive national case has been crudely manipulated by the government from day one. Who can forget the botched arrest of Tsatsu while attending church? What about the supremely brazen packing of our Supreme Court that overturned the 5-4 decision in his favor which eventually culminated in his bizarre conviction?

Be that as it may, in advancing the goals of justice, a court of law and the prosecuting authority are enjoined by our common experiences to exercise a great deal of decency, restraint and circumspection even under the most provocative of circumstances. Thus a court and/or a prosecuting authority must take notice of the special circumstances of a particular case in order not to provoke or inflame unnecessary passion and anger in the country. This does not in any way mean that they must compromise or subvert the law of the land just to appease a vocal section of the population. Rather, it means that they must not only be seen to be firm but also seen to be fair to the accused. For example, at no point in time should they be seen to compromise their impartiality. It has never been the legal responsibility of a prosecutor and/or a court to secure a conviction by any means possible. Their legal responsibility of ensuring a fair and speedy trial as officers of the law is not only to the state but also to the accused! In fact, it does not lie with the legal purview of our attorney general to file frivolous appeals in pursuit of a political goal!

The preceding vividly captures in essence the truism that "JUSTICE MUST SATISFY THE APPEARANCE OF JUSTICE". This eloquently explains why we continue to say that Justice Henrietta Abban undermined her crucial performance in more than one way: We are here talking about the learned justice’s point blank refusal to give reasons why she overruled Tsatsu’s submission of no case application, her remarkable and weird statement that the case was hanging around her neck like an albatross, depriving Tsatsu of legal representation and, importantly, rushing to judgment when there is a material issue pending before the Supreme Court which issue if resolved can turn the scale of justice one way or the other. The million-dollar question is: What happens if the Supreme Court rules in favor of Tsatsu Tsikata? Meanwhile, skeptics are wondering if it was Justice Abban’s injudicious way of undermining or influencing the Supreme Court’s decision in the matter? We sincerely hope the Supreme Court will solidly address these pertinent issues to serve as a reference point similarly placed cases in future.

With all due respect to the learned Justice, what seemed to have eluded her is that the appearance of justice in any criminal matter is as important as the reality of Justice. In other words, the perception and reality of justice are joined at the hip - inseparable! Any judge who separates the two is doing the administration of criminal justice grave harm. The reason why Justice Abban is being mercilessly pilloried by a section of the population may be traced to the perception that she was biased toward Tsatsu Tsikata and that her critics see her as part of a judicial system that is abetting the government’s strategy of "get-Tsatsu-Tsikata-at-all-cost"!

OBJECT LESSONS:

I think we should use this time to reflect deeply on the deplorable state of our judiciary. One thing is certain: The judiciary - like other important institutions of state - has lost its luster. Public confidence in our judicial system is at an all time low. And this is not funny! It is a serious matter which must be addressed by serious minded individuals who have the survival of our democracy at heart. The danger here is that anarchy will surely reign if people lose confidence and trust in the judiciary and other law enforcement agencies.

Any responsible democracy has in place checks on the aberrant behavior of the executive, especially one that is abetted by a rubber stamping and slavish parliament. Thus, the vital role of safeguarding the administration of criminal justice as ordained by our constitution and our common experiences should not be trivialized by the actions and inactions of our judges and our prosecuting officers led by our Attorney General. It is our humble submission that our justices should not be cowed by the executive branch of government for the simple reason that they hold a life tenure on the bench. What better incentive do they need to be fiercely independent instead of being seen as tools of the ruling government!

How do we expect to build a more enduring and functional society if the judiciary - the last bastion against tyranny - is weak and ineffective? What is instructive here in light of the brouhaha over the Tsatsu case is that our judiciary must not be seen as corrupt, timid and politically aligned because that is not what our nation needs at this crucial stage of our constitutional development. Our judges must be seen as a check on the errant, illegal and illiberal behavior of the government. For example, where our judges’ decisions, judgments, orders, sentences etc are seen as being dictated more by ideology and politics rather than the law and the evidence in any particular case, the judiciary loses its stature in society. Exhibit A is the conduct of Justice Abban in the Tsatsu case. Such a situation breeds distrust and anger among some sections of the general population to the point that even a fair ruling is seen otherwise!

Judges, for all we know, do not owe allegiance to the president who nominates them or the parliament that confirms them. Their allegiance is to the constitution and the people they serve. We have always insisted that all politicians love weak, corrupt and politically aligned judges for patently obvious reasons. On the flip side, the public must always remind these judges of their oath of office because they are also human beings capable of making mistakes. Hence, our duty to criticize their behavior, judgments, decisions, rulings and orders in an honest, frank and timely fashion without resorting to threats, intimidation and unnecessary name-calling.

The ball in now in the court of our justices. How they play it will be a good barometer to gauge the health of our democracy. Meanwhile, we are humbly inviting Justice Abban to admit that as a human being, she made some serious and crucial mistakes which mistakes undermined Tsatsu’s defense. Hopefully, the Supreme Court is going to rectify them to bring justice to bear on this case.

The long and short of it all is that Mr. Tsatsu Tsikata like every Ghanaian deserves better under our criminal justice system and civil society must insist on that!

We rest our case for now.

WILLIAM ANTWI, (BAFO) A.K.A. OYOO BUSANGA. NEW YORK.