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Opinions of Friday, 2 December 2016

Columnist: Asare, Kweku S.

The right to appeal after being unconditionally pardoned

By S. Kwaku Asare

On November 30, 2016, the Court of Appeal acquitted and discharged Mr. Tsatsu Tsikata who was convicted on June 18, 2008 of willfully causing financial loss of GH¢230,000 to the state and of misapplying public property and who received a free, absolute and unconditional pardon of the conviction on January 7, 2009.

Although the 2009 unconditional pardon robs the Court of Appeal's ruling of practical significance, it will or should excite the minds of students of the law.
At issue, is the effect of accepting a pardon on a convict's right to appeal and the Republic's obligation to respond to such an appeal.

The common law is settled that a convict who accepts an unconditional pardon waives any right of appeal with respect to that conviction. The underlying theory is that accepting the pardon carries with it an implied admission of guilt and closes the chapter on the case. In effect, a convict who wants to preserve his right to appeal should reject such a pardon.

Having accepted a free, absolute and unconditional Presidential Pardon, Mr. Tsikata had no standing to appeal his conviction; the Court had no jurisdiction to hear a matter for which the appellant had been forgiven for confessing his sin; and the Republic had no obligation to respond to an appeal by an appellant that it had unconditionally and absolutely pardoned.

In consequence, the Court could neither exonerate him, as it claims it has, nor affirm the judgment of the court below. Corollary, the Court's exoneration will not work to empower the prosecutors, if they were so inclined, to retrial him anymore than the Court could have referred the case to the court below for further proceedings.

In effect, this matter was res judicata and should not have exercised the time and mind of the Court! Win, lose or draw, Mr. Tsikata remains unconditionally pardoned for his conviction as there is no existing conviction that the Court of Appeal could quash.

On its part, the Republic had no interest or obligation to respond to an appellant who had accepted an unconditional pardon, reducing the proceedings to a one-sided affair with only one likely inconsequential outcome.

Subsequent to his pardon-based release, Mr. Tsikata has publicly declared that he has rejected the pardon. That, of course, is brutum fulmen. It is analogous to wearing a cross around the neck while pocketing a talisman. Mr. Tsikata cannot reject a pardon that he is enjoying.

In fact, but for the pardon, he could not practice law and participate in the famous 2013 election petition as those convicted of crimes of dishonesty and moral turpitude are barred from practicing law. That is, the conviction had been quashed by the pardon at the time that Mr. Tsikata appeared before the Supreme Court.

George Wilson provides the best example of how to reject a pardon. He was pardoned after being convicted and sentenced to death by hanging. Wilson rejected the pardon and the United States Supreme Court (32 US 150 [1833]) upheld his right to reject the pardon as follows:

"A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it is rejected, we have discovered no power in this court to force it upon him." Subsequently, Mr. Wilson was hanged.

In my opinion, the Court erred by allowing Mr. Tsikata, my learned brother, to eat his cake and have it.