Feature Article of Friday, 20 April 2012

Columnist: Owusu-Gyamfi, Clifford

Treason versus Genocide, What is Mr. Agyapong’s Crime?

The unruly comments of Mr. Agyapong Kennedy and his declaration of war against selective ethnic groups of persons in Ghana have generated a heat of controversy in jurisdiction whether the crime is treason, genocide or perhaps something else. The magistrate’s court has declined jurisdictions for the charges of treason while some lawyers insist that it’s an act of treason and the case must be proceeded as such. Meanwhile, others think it to be genocide in contra to the former.
With reference to the Ghanaian criminal code, treason and genocide are not classified under same chapters though both of them are considered as first degree crimes. For purpose of clarity, let’s begin to consider the meaning of these two legal terms.
Treason is from a 13th Century anglo-franco “treson” from the old French “traison or Trahison” which has its root from the Latin, “traditionem” or “(nom) traditio” meaning handing over. The verb form in French is “trair” means “to betray.” From whence, in legal definition, treason is defined as, “A breach of allegiance to one's government, usually committed through levying war against such government or by giving aid or comfort to the enemy.” The word “traitor” is someone who has betrayed his sovereign or nation. The central theme is “betrayal of allegiance to a sovereign or nation.”
In the Ghanaian Criminal code on Section 180, it is stated: “(1) whoever commits treason shall be liable to suffer death. (2) For the purposes of this section, "treason" shall have the meaning assigned to it by clause (3) of Article 3 of the Constitution.* (3) A person who is not a citizen of Ghana shall not be punishable under this section for anything done outside Ghana, but a citizen of Ghana may be tried and punished for an offence under this section wherever committed.”
Now let’s look at Genocide.
The International Criminal Court’s (ICC) legal definition for the crime of genocide is found in Articles II and III of the 1948 Convention on the Prevention and Punishment of Genocide. Article II describes two elements of the crime of genocide: (1) The mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and (2) physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called "genocide."
Further, the convention continues to specify acts that are punishable under genocide crimes. In Article III we have, (a) genocide, (b) conspiracy to commit genocide, (c) direct and public incitement to commit genocide, (d) attempt to commit genocide, (d) complicity in genocide.
In article IV the act continues like this, “Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Two main legal terms that play important roles are “murder” and “extermination.”
In the light of the above definition of genocide, should Mr. Agyapong be convicted of genocide crime, that will be Article III, Section (c) “direct and public incitement to commit genocide.” It’s only in this section that convicts Mr. Agyapong as a perpetrator of genocide.
However, in Ghana, our criminal act governing genocide does not include the Article III, Section (c) of the ICC Acts. It states:
“Section 49A—Genocide. (1) Whoever commits genocide shall on conviction be sentenced to death. (2) A person commits genocide where with intent to destroy, in whole or in part any national, ethnical, racial or religious group he— (a) kills members of the group; (b) causes serious bodily or mental harm to members of the group; (c) deliberately inflicts on the group conditions of life calculated to bring its physical destruction in whole or in part; (d) imposes measures intended to prevent births within the group; or (e) forcibly transfers children of the group to another group.” Some lawyers of Mr. Agyapong conclude that this section of the criminal code may be weak to convict Mr. Agyapong since no physical violence, crime or murder was carried on anyone.
Genocide is considered as a domestic crime and therefore domestic courts preside over the case. Punishment associated with genocide crimes are not spelled out by the ICC and there have also been cases whereby perpetrators were not tried or punished. For example in 1988 Saddam Hussein exterminated the Iraqi Kurd with the use of poison gas but the case was not tried.
Today, dealing with genocide cases is coupled with a lot of challenges. Many social researchers and scholars believe that reason or motive must be considered in dealing with genocide cases. Hence some argue that there can be mass murder of people for reasons other than their group membership. Mr. Agyapong’s issue is a clear genocide crime on international criminal codes but with a “conditional motive” other than intentional attempt.
Moreover, this issue has to do with usage of words other than actions. For that matter, his language must be analyzed to find the proper crime in association. In this case and as it has been established by other lawyers, Mr. Agyapong must be charged with second degree felony. Under article (183/3) of the criminal code it is stated, if “Any person who conspires with any person to carry into execution any seditious enterprise, or prints or publishes any seditious words or writing or utters any seditious words, or sells, offers for sale distributes, reproduces or imports any newspaper, book or document on any part thereof, or extract therefrom containing any seditious words or writing, shall be guilty of second degree felony.”
In that case, the punishment is well stated in the criminal code Article 183/4 “A person found guilty of an offence under subsection (3) shall be sentenced to imprisonment for at least five years unless that Court finds that the offence was trivial or that there are special circumstances relating to the offence or the order which would render its application unjust.”
Mr. Agyapong has committed second degree felony by seditious utterances other than treason and genocide. Even that, if the court by their own interpretation finds that his action was a conditional motive based on circumstances as spelt out in the criminal code, the case can be considered as trivial; only if his lawyers can produced legal evidences to substantiate the circumstances.
NB: Please share your views on this article and respect the views of others. Don’t insult anyone here please.

Clifford Owusu-Gyamfi
University of Lausanne, Switzerland