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Opinions of Thursday, 16 May 2013

Columnist: Asare, Kwaku Ohene

To Whom Much is Given Much is Expected.

I recall that it was on onefateful afternoon in 1982, in the Great Hall of the University of Science and Technology, currently KNUST, when the student body politic played hosts to the then Chairman of the Provisional National Defence Council (PNDC) with his aide de camp, LawyerTsatsuTsikata. They were flanked bySgt.Akata Pore.It was the first time I saw Chairman Rawlings and Tsatsu in person. I was in my first year at University as a humble undergraduate of Agriculture,

That fateful afternoon, the Great Hall was fully packed, in anxious anticipation of our famous guests. I must say that I can recall that the performance of Chairman Rawlings was quite vigorous but not profound.Tsatsu on the other hand was not under as much pressure and indeed, I stand corrected, but he only intervened once, to give a speech. Like now, there was the same hype that heralded his appearance in the Great Hall of the KNUST; a renowned Lawyer and an extremely radical Socialist. His dressing was tardy and on his feet he wore what was then referred to as ‘m3 dcmawu’. The expression means that ‘I will weed till I die’. In a very soft spoken voice, Tsatsu advised and encouraged us as University Students to break off the academic year to undertake voluntary work for purposes of nation building, deploying a very powerful maxim/saying:‘To whom much is given, much is expected’.

I and my mates had only heard this rather potent maxim for the first time; we kept repeating the lines so many times even after the encounter. Little did we know that it was indeed from a biblical passage! Read Luke 12:48.I do not recall whether Tsatsu quoted his source. However, the Great Hall was in some rapt attention and it was obvious that the man had endeared himself to the student populace. We admired what appeared to be the ‘intellect’ of Tsatsu, Vis-a-Vis Chairman Rawlings’ pointless demagoguery. No matter how much you disliked the blood thirsty PNDC/AFRC, you couldn’t fail to admire Tsatsu’s apparent intellectual prowess and indeed of the humility that he appeared to exude. But with enlightenment, I realize that the whole myth about Tsatsu is probably because he is usually in the company of intellectual ‘also rans’ and the unconscionable propaganda that has been the stock in trade of the NDC party and their founders. I must say that most of us are now watching Tsatu’s performance as a Lawyer through cleaned lenses and we are ourselves better educated and formidable in our own right. Moreover, it is a different world we live inaltogether. Society has progressed in 21 years and I am very surprised that this eccentric ‘professor’ of Law cannot understand this. It is a very complicated case of myopia if a Lecturer cannot get over the fact that his students have become better at the practice of Law than himselfeven though he has had very limited Court room experience. His only well publicised cases include one in which he defended himself against charges of causing financial loss to the state. Even then he lost and went to prison for it. There is a proverb well known to Lawyers, that self-representation in court is likely to end badly: ...observed the eminent lawyer, "I hesitate not to pronounce, that every man who is his own lawyer, has a fool for a client’ I have sought to employ all my best endeavours to fathom out, but to no avail,why, if the NDC seriously wanted to win the on-going election dispute before asstrong and fair minded ‘jury’ as we have in this case, that they should have pickedMr TsatsuTsikata for this ratherherculean task of defending the party on such a global platform. The man may well be a great intellectual but great intellectual strengths do not automatically translate into great advocacy skills. Let everyone understand that even in England some of their great Court room advocates have come to the profession with 3rd Class degrees in Law and some 1st class graduates have been abysmal failures in the Court room. Besides, experience has a very unusual way of putting you well ahead of the race.

Here are some illustrations of Tsatsu’s performance from the on-going election dispute which make interesting reading.

Tsatsu to Bawumia: ‘I am telling you that your knowledge of the Law is very poor’. This happened when the witness, a former Deputy Governor of the Bank of Ghana, an international banker and a vice Presidential candidate for one of Ghana’s 2 main political parties, teased him(Tsatsu) about using the word ‘Certified’ all the time, whilst admonishinghim(Bawumia) for using the same word. Tsatsuhad argued that it was for the Court to determine what the word ‘Certified’ meant in Law, yet he had used the wordhimself umpteen timeswhilst questioning Bawumia.Tsatsu clearly felt that this astute witness was pitting his wits against him, he could not restrain himself and he needed to put the witness down, although he did so in such a puerile and insincere manner that the advocate’s own insecurities were so painfully exposed!

In another encounter, Tsatsu was mistaken as to how many Pink Sheets in total that the Petitioners had been ordered by the Court to produce following the Respondents’ request for further and better particulars. The witness in trying to contradict Tsatsu, referred to the precise paragraphs of the relevant pleadings. It was indeed quite impressive.

Obviously irritated, Tsatsu went: “Your detail does not impress anyone”. He said this even though it appeared obviously impressive to everyone else. A seasoned advocate will go: “that is quite a lot of impressive detail though it does not answer the question” and then proceed to ask questions relevant to that and/or put his case to the witness. To worsen Counsel’s predicament, he was so wrong about the figures. For me as an experienced manager, what came to mind was that this hailed ‘Superstar Lawyer’ and former Manager in Ghana’s Oil industry was not even recognizing perfect opportunities to deploy the ‘carrot and the stick’ approach when it stared him in the face. Sometimes you have to try and lure the witness into a false sense of security. Cross examination of an intelligent witness is no child’s play especially in such a difficult case.If you don’t know how bad your witness can go after a few praises, watch Tsatsu himself in action. He has been spoilt by praise for most of his Legal career, if any, andthus behaving rather so badly in Court in the full glare of television cameras!

Another interesting encounter took place a couple of days after Tsatsu described Bawumia as possessing very poor knowledge of the Law. On seeking to challenge NPP’s preference for written figures on a Pink Sheet when assessing alleged over-voting, Tsatsu dared to ask the formidable Economist and Banker as to what were the consequenceswhich will flow from the making out of a cheque that has a discrepancy between the written figures and the written words. The answer that followed clearly meant that Tsatsudid not know the correct answer to the question posed. Bawumia replied in his usually relaxed manner, “actually Counsel, the cheque will be annulled!” Gosh, that is the mark of an incompetent Barrister. You ask such a reputed and intelligent Banker a question to buttress your position about a matter relating to the witness’ field of endeavour without knowing the answer to the question yourself? Very unfortunate! You could not even challenge the witness’ answer there and then.

Rather than let the matter rest, Tsatsu’s ego was clearly bruised so as usual he could not ‘act’ it away but returned to the issue the following day, obviously after detailed research and/or with some education on the Banking Laws. He clearly confirmed that he did not know the answer to the question at the time he asked the previous day. He asked Bawumia to identify the relevant legislation relating to the rules on cheques. I have some ideas as to where the ‘Learned Counsel’ was heading but why ask a question that portrays your ignorance especially in the circumstances he sought to deploy the answer to the question. However, the question was a non-starter as you do not ask your lay client to deal with Legal issues. Tsatsu had previously been shot down on several occasions for asking similar ‘Legal’ questions’.

Is it a case of not being able to teach an old dog new tricks, or is it simply that Tsatsu’s objective is simply to waste the Court’s time and as such, he no longer cares about the rules of cross examination?

It was even funnier when Tsatsu dared to ask Bwumia to educate him on the Law as to what an election Malpractice is. Bawumia: “I cannot educate you as my knowledge of the Law is very poor”.

With mounting evidence ofcourt room immaturitypiling up against Tsatsu, although not in the particular order in which I have listed the above examples,Tsatsu then made the notorious ‘Shut Up’ comment. My sensibilities were even more offended by the Supreme Court’s stark inability to promptly and satisfactorily deal with the matter. They did not even have the courage to reprimand Tsatsu. Surprisingly TsatsuTsikata had the effrontery to refuse to withdraw his use of such obviouslypedestrian and aggressive language in the Supreme Court of the Republic of Ghana! OMG - counsel has brought the profession in Ghana into gargantuan disrepute.Why did he put the Court in so much difficulty as to what to do?

In an almost comical encounter, Tsatsu, during his application for an audit of the Pink Sheets, pointedly refused to comply, when he was asked to provide his estimation of the number of pink sheets arising from Bawumia’s affidavit. If indeed an independent audit was being called for then what were his fears? How can that information benefit the Petitioner? The Petitioners have already nailed their colours to the mast and have insisted on a figure of 11,842, what more? Can this man not think on his feet? He could even have given the impression that he did not have an accurate figure at the time. Spurred on by his usual arrogance and incompetence he defiantly refused to give an answer to the Court. That was shocking; that he so brazenly refused a demand from the Justices.

The Bar is traditionally regarded as the English man’s most prestigious profession and members of the Bar are known for their highest standards of etiquette and skilful use of the spoken language. Good barristers are reputed to have a great facility with the use of English Language. Barristers are usually advised to note that the art of advocacy is not too dissimilar from acting. In my opinion you should only act angry but never get emotional in the Court roombecause in the process you will not be able to keep your wits about you.

Now, some words of wisdom from some of the greatest minds that have ever walked the face of the earth. I need to do this before our young ones begin to emulate Tsatsu’s style.

1. “Anybody can become angry - that is easy, but to be angry with the right person and to the right degree and at the right time and for the right purpose, and in the right way - that is not within everybody's power and is not easy”. (Aristotle) &

2. "Anger dwells only in the bosom of fools." (Albert Einstein)

Please note that Aristotle is trying to suggest that any fool can become angry but it takes a great deal of emotional management to direct it appropriately and use it to your advantage. Einstein however thinks that only fools get angry, alternatively, he is probably suggesting that it is foolish to get angry. That cannot be true but whatever he means, the 2 great thinkers are both in agreement that any fool can become angry. I am quite bemused that General Mosquito hasn’t had a word or two for his esteemed Lawyer.

I saw all this coming! It was in a very subtle form. This happened on the first day the Petition hearing was televised. Tsatsu in trying to contend that the Petitioners needed to amend their petition before they can abandon part of their pleadings, started by saying how elementary the procedural rule was thatthe Respondents were relying on! The comment was almost suggestive of ignorance on the part of the Justices even though he ended that comment by saying ‘and I believe that the Justices will be taking account of that’. That clearly was not persuasive and indeed he lost that point. What he could have said was: ‘As the Court is no doubt aware, it is trite Law, that the Petitioners can only proceed by way of an amendment of the petition, if they seek to abandon such a significant part of their case’

In the U.K. the training course for Barristers is referred to as the Bar Vocational Course. That for Solicitors is referred to as the Legal Practice Course. Both courses emphasize skills training. Knowledge is assumed to have been acquired at the degree level.

On his current performance, Tsatsu should have been consigned to the backroom as a Research Lawyer. How can you unleash such a rusty and perhaps, unsophisticated Lawyer onto the general public?

One could be tempted to think that Tsatsu might be mistaken as to who his audience is otherwise he would have known his witness by now. The more you run the case through him the more opportunity you give him to reveal how irregular the elections were. He keeps coming back with things like the EC misled stakeholders about the real rationale for printing additional pink sheets with the same serial numbers, that the highest level of malpractices are associated with polling stations with duplicate serial numbers spouting out figures from his analysis which the NDC’s Lawyers don’t appear to have read. It is so embarrassing to the NDC I wonder whether they are listening. Is Tsatsu merely seeking to earn a reputation as a marathon cross-examiner? Is he not merely putting his ego before such an important case? In all his days of cross examination he has only succeeded in exposing possible mislabelling of exhibits and

Tsatsu will clearly be a liability inany Country with advanced systems of practice, always coming back to the office with wasted cost orders. Our judges seem to admonish those who criticize them but are they not acting with timidity when they can’t even hold TsatsuTsikata to account? He is so unskilled he repeats expressions like ‘there are many ways to kill a Cat’ when it was his party that was accused of threatening Judges and indeed it is his own brother who stood accused for the infamous murder of Ghanaian judges. Indeed he relied on this notorious expression when his line of questioning had been denied by the Court. The nuance would appear to have been completely lost on this famous Lawyer OR was it that he could not control his temper on this occasion as well? I will not be surprised.

Many may have forgotten all too soon that it was Tsatsu’s brother, Kojo, a well-known mercenary, who stood accused as the mastermind of the conspiracy that led to the ignominious murder of very senior High Court Judges in 1982. Kojo’s prosecution was recommended by Justice Samuel Crabbe after a thorough investigation, only to be scuttled by the then Attorney General, Mr Aitkens, quoting a former British Attorney General. He rendered the courts impotent in a matter which would have brought true Justice to the families of the assassinated Judges and would likely have sent Tsatsu’s brother to prison.

In my opinion it is not enough for the Court to say next time Counsel repeat unacceptable conduct they will be asked to apologize or withdraw. The court must have the power to deal with the conduct as contempt and/or remove counsel from the Court for repeated misconduct.

The last most interesting response today that Tsatsu drew from Bawumiaclearly provided evidence of a failing cross examination.

After unduly imputing dishonesty to the conduct of Bawumia, he in turn replied:

“If you want to be honest with the court let us put down my analysis. If you are not afraid of the truth, show me one repeated polling station in my analysis. If you are afraid of the truth then of course you would hide behind these exhibit numbers”.

As usual, Tsatsu was profoundly silent about Bawumia’s analysis. Most importantly, he was offended by Bawumia’s comments; he just could not shake it off like water off a duck’s back as I would have expected from the robust barrister he is making himself out to be!!

Tsatsu may have received a 1st Class education from Oxford, given an honorary and gargantuan reputation as a Lawyer and perhaps a first class knowledge of the area of Law he tutors but he clearly lacks the finesse of an accomplished advocate. He should at least have discerned from much earlier on that the longer he keeps prolonging his cross examination of this smart and young witness, the more he exposes his inadequacy as a Lawyer. Lets not be fooled into thinking Tsatsu has any special skills for delaying court proceedings, I am afraid, it is the Court which is failing in its duty to control and manage proceedings properly and firmly. At so many points in the cross examination you get the impression that the cross-examiners simply haven’t studied the documentation properly and they appear under the pre-text of cross examination simply seeking clarification of the same problem over and over again. Why haven’t the Respondents as yet been able to dispute Bawumia’s constant reference to his analysis even once”. What about the Court? Has it studied the evidence? No doubt, there is quite a substantial amount of evidence in this case but I would have thought that any reasonably intelligent team of Lawyers should by now have mastered the details of the said analyses. The qualified legal clerks should be helping the Justices; they should be using their long breaks to come up to speed on the evidence, The court breaks on Thursday evenings and returns on Monday morning.

I have to dove out my hat to hail the very bold Justice Samuel Crabbe who doesn’t seem to be that celebrated in Ghana’s Legal History. However, to have had the audacity to investigate Government functionaries under a military regime and tohave presented his findings as honestly as he did, that takes some real commitment to Justice and the truth. We need to insist on the best standards of behaviour in our first televised Court proceedings.

Ghana’s democracy, its Legal system and perhaps its standards of advocacy are today on trial in the clear view of the whole world. Is this what Tsatsu is prepared to tell the world? What about our 9 justices? Do they want to sit idly by whilst Tsatsumakes a mockery of our Justice system? There is no gainsaying the fact that we stand to attract a massive investor confidence if our Legal System is perceived to be rigorous, robust and reliable. The Legacy should not be that, however good your case is, there are some Lawyers who have an extra-ordinary capacity to delay the court process in such a way as to keep your legitimate contract indefinitely unenforced.

To whom so much power and honour are given, much is expected.

Tsatsu was given the Ghana National Petroleum Company to find Oil, he used it for farming. He has thus far shown the worldthat if he has anything to give at all in the on-going Presidential Petition, he wishes to give it his least by unscrupulously delaying proceedings.

How about our Supreme Court? Well today, the Court found its voice!

Kwame Ohene Asare Croydon, U.K.