Terrorism Charges Against Agyapong, Guilty or Not Guilty?

By Kofi Ata, Cambridge, UK

This is the second and final part of my article on the charges preferred against Kennedy Agaypong by the state following his war declaration and incitement to ethnic hatred. In the first part, which appeared on Ghanaweb on Tuesday April 24, 2012, (see “Agyapong’s Genocide and Terrorism Charges: Bizarre or Ludicrous?”) I concluded that the charge of attempt to commit genocide was weak, not supported by law and the evidence on the ground. In this section, I will consider the charge of terrorism.

Until the terrorist attacks on United States on September 11, 2001, the concept of “terrorism” did not have a common definition as states had different views and could not agree on a single definition. Attempts to find a broad consensus on the concept by the international community before the Second World War failed. A wave of hijackings and other incidents in the 1960s and 1970s, including the hijacking and massacre at the Munich Olympic Games in 1972 promoted fresh moves by the United Nations to prohibit all acts of terrorism under international law. However questions and objections raised by especially developing countries and states still under colonial domination on how to treat acts of national liberation movements and whether to exclude such acts from any definition of terrorism made those efforts also futile.

There were two major blocs, those for whom terrorist acts were unlawful wherever and by whomsoever they were perpetrated (in other words, the ANC, Nelson Mandela and others were terrorists, period) and the others for whom the identity of the actor and the purpose for which the act was committed made all the difference (that was, the ANC, Nelson Mandela and others were freedom fighters). The gaps between the two were such that they were unbridgeable at the time. This was how Guillaume, a French jurist described their differences in 1989, “the search for a definition of terrorism in international law has proved as difficult as the quest to find the Holy Grail”. To cut a long story short, all that changed on September 11, 2001.

“The deliberate and deadly attacks which were carried out yesterday against our country were more than acts of terror. They were acts of war”. These were the words of President George W Bush in a speech to the US National Security Team a day after the Al-Qaida attacks. With these words and equating “acts of terror” with “acts of war”, terrorism formally entered the annals of international law. Though international terrorism existed prior to September 11, the scale of the attacks, the massive loss of life, the modus operandi (planning and organisation) with which they were executed the attacks set them apart from all previous ones in the twentieth century. Moreover, the threat of future mass violence which the attacks represented, the willingness and preparedness of Al-Qaida to carry out further attacks were such that they demanded a response far beyond what that of national policing and security required. In such circumstances, reference to “war” legitimised the degree of commitment for eradicating future terrorist attacks by means of war.

What is terrorism then? Post September 11, terrorism is widely accepted as characteristically involving the taking of innocent lives in order to communicate a political message or more effectively to engage in low-level campaign of violence against an established order. Curzon’s Dictionary of Law defines it as “the use of violence for political ends, including any use of violence for the purpose of putting the public or any section of the public in fear”. Despite the dangers to society and humanity by the threat posed by terrorism, there is still no single international convention on the subject but a plethora of them dealing with various aspects of terrorist threats such as hijacking of aircrafts, hostage taking, prevention of financing of terrorism, etc. One thing that is certain is that since September 11, 2001, all members states of the UN have enacted laws to deal with the threat of terror at home and abroad.

Like the crime of genocide, terrorism also requires considerable amount of careful planning and organisation. It needs detailed preparations including intelligence gathering and reconnaissance, careful selection of suitable and appropriate targets, etc. Because of the time, efforts and financial resources that go into carrying out terrorist acts, it is not enough to charge people with the crime of terrorism by mere incitement, particularly in low risk areas countries such as Ghana, though that is not to suggest that terrorist will never strike in Ghana.

From the above, can Kennedy Agyapong’s declaration of war and incitement to ethnic hatred amount to an act of terrorism or commissioning, preparing and instigating a terrorist act? The simple answer is, unless the state can unearth some evidence that he had plans in place to carry out his declaration of ethnic hatred towards Gas and Ewes, the charges may be as weak as the misguided action of the now [Dis]honourable prodigal son of NPP, if not even weaker. The state will find it difficult if not impossible to produce any shred of evidence to prove that Kennedy Agyapong has or was in the processes of preparing, commissioning and instigating a terrorist act,

By the very nature of the pronouncement, that is asking one ethnic group to attack two ethnic groups is problematic in the context of terrorising that directive. This is because the target group must be identified and attacked. Terrorist acts do not discriminate against the victims, though the targets are carefully selected for greater impact, the act itself and its impact is non-discriminatory. All groups, be it ethnic, race, religious, nationality, political, socioeconomic, age, sex, etc, become victims in the areas where terrorists strike. In the case of the accused, the victims are to be selected and attacked. Terrorists do not operate that way. Once a target is chosen, it does not matter who is in the chosen area.

Another factor that is in favour of the accused is that, terrorist acts are often perpetrated by carefully selected individuals or a small group of people who are either trained or coached into carrying out the deadly acts but the victims are many and highly disproportionate. For example, one suicide bomber could kill many innocent victims or destroy a large building with many victims. The accused asked a large number of people to attack groups that are both arithmetically and proportionally smaller even if it is easier to identify all of them. The modus operandi of the accused and his so-called would be perpetrators (if were ever carried out) would be diametrically opposed to any operations of a terrorist or terrorist groups.

Last but certainly not the least, terrorists believe and subscribe to one political ideology. Though the Asante region is overwhelmingly pro NPP, it is not clear how many Asantes subscribe to NPP’s political ideology. Again, the individuals who lead terrorist groups or a cell are highly influential and have control over those who subscribe to their political ideology and for the cause that the group stands for. Sometimes he (since all terrorist leaders are men) can have absolute control over his followers across the globe such as Osama Bin Laden had over members Al-Qaida across the world. I am not sure if Kennedy Agyapong can claim to have any control or influence over even a quarter of Asantes in Kumasi, let alone throughout Ghana. The support shown by NPP supporters should not be misconstrued to be his influence over them.

The jury is still out but from my own analysis as above and those outlined in the first article, I am confident that the two charges against the accused are not only weak but also preposterous. They have no legal basis and therefore, I find the accused not guilty on the two counts of attempt to commit genocide and terrorism. Ops! Is that not contempt of court?

Many states, including developed democracies of the west have abused terrorism legislation and have wrongly charged both foreign nationals and their own citizens with terrorist offences. Such abuses of state power is often justified under the pretence of preserving international peace and security, national security and to reassurance that the state is in control of affairs in order to encourage people to go on with their everyday lives without fear or panic. It is also relied upon to give the security agencies more time to carry out further investigations in what is known as fishing for the evidence of terrorist acts (the preparation, commissioning and instigation of acts of terrorism) in order to keep suspects or the accused in custody as was the case of Kennedy Agyapong.

I guess desperate situations demand desperate measures as a small group of Greek citizens have taken their government to the International Criminal Court for crimes against humanity because of the drastic austerity measures imposed on them by the government. Their case is that, the financial austerity has imposed inhumane and degrading conditions on them leading to some people taking their own lives. Family life is at risk and many have lost their Economic and Social Rights. Interestingly, the case is being considered by the Court. But is Ghana really in a desperate situation for the state to resort to desperate measures by bringing unsubstantiated, unfounded and illogical charges against a citizen?

I rest my case.

Kofi Ata, Cambridge, UK