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Friday, February 26, 2010

Ghana: Abuse Of Process

“It is unreasonable to send on a prisoner without specifying the charges against him.” Acts 25:27.

At dawn on a Valentine’s Day, Saturday, February 14 this year, fire razed down the official residence of former President Jerry John Rawlings. It is by divine intervention that Nana Konadu Agyemang-Rawlings and one of their daughters, who were asleep, escaped death.

Since the tragedy, Ghanaians from all walks of life have proffered goodwill and sympathy to the former first family. Indeed, it was a noble sight when the four major political parties in the country sent a common delegation to sympathise with the Rawlingses, underlining the Akan saying that it is when you are involved in a tragedy that you see your genuine friends.

We all agreed that the tragedy was unfortunate and, therefore, everything must be done to resettle the family as early as possible. All those who have commented on the tragedy had done so convinced that the catastrophe could have happened to any other person.

However, the goodwill and the sense of purpose that the tragedy engendered had evaporated when it emerged that the police had acted disproportionately in arresting a radio commentator, alleged to have made an irresponsible statement in his reaction to a newspaper publication, which had brought up three theories as the possible sources of the fire.

The newspaper had claimed that some of the people it had interviewed had suggested that the former President Rawlings himself could have set the fire to his residence, but added that it had no independent source to confirm the allegation.

In his comments, an over-zealous party activist, 27-year Nana Darkwa Baafi, stated that he would go with the theory of self-inflicted tragedy and could confirm that he was convinced Flt Lt. Rawlings committed that crime of arson to see the house rehabilitated or get his family relocated.

Before majority of the people could even hear what exactly the boy said, an aide to the former President, Kofi Adams, who is also the Deputy General Secretary of the National Democratic Congress (NDC) is said to have made a report to the police. However, the police also claimed that they had information that a group was massing up to attack Top Radio, because of comments made by Nana Darkwa and, therefore, rushed there to give him protection.

The next was that the young man was brought before a judge, who ordered him to be remanded and to reappear on March 3, 2010, and since then, the whole country has been in turmoil as everything had been directed at this single incident, which touches at the core of fundamental human rights, the rule of law, due process, constitutionalism and separation of powers.

Indeed, the Minority in Parliament resolved to boycott proceedings in the House until the right thing was done. Expectedly in a partisan manner, the Majority denounced the boycott as unconstitutional, although they did not cite the specific provisions the Minority breached.

The President justifiably issued a statement decrying the abuse of process and system. Equally, an executive member of the NDC has also denounced the police action, which has overnight turned Nana Darkwa, whose irresponsible comments could not be supported by any well-meaning Ghanaian, from a villain to a hero.

The National Media Commission and the Ghana Journalists Association, as well as the Committee for Joint Action, have all expressed their position on the matter.

Whereas almost every well-informed and objective Ghanaian has condemned the irresponsible comments by Nana Darkwa, they are also at ad idem that the police reaction and proceedings in court undermine the rule of law and democracy.

The point is that the young man was charged under Section 208(1) of the Criminal Code 1960 (Act 29), which states that, “Any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that the statement, rumour or report is false is guilty of a misdemeanour.”

What investigations did the police undertake to come to the conclusion that the statement is false and that the boy has committed a crime? For, whilst we all agree that the statement was irresponsible, that does not mean that he has committed a crime.

Again, since the matter is a misdemeanour, it means that it is not a grievous crime. More important, when the courts were called upon to decide on such matters in Adusei II v The Republic and Ayeh v The State, it was held that the mere making of a false statement was not the crux of the offence, but its publication to the public in such a way as to cause alarm and fear. It was held that the essence of the offence was to protect the body of the public from unnecessary fear and alarm.

For all intents and purposes, if one alleges that a certain person is about to cause a coup d’etat in the country, just as the hoax about the earthquake, that is more likely to cause alarm and fear rather than the reaction of individuals massing up to assault another for expressing an opinion they do not like.

Turning to the judge, since Nana Darkwa was charged with misdemeanour, that is not a major crime. Therefore, he should have been summarily tried. In that wise, in the opinion of A.N.E. Amissah, former Director of Public Prosecutions, Justice of Appeal, Professor and Dean of the Faculty of Law, University of Ghana and Attorney-General and Commissioner of Justice in his book “Criminal Procedure in Ghana,” the “Court has power in its discretion to adjourn hearing of a case to a time and place to be appointed and stated in the presence of the parties or their respective advocates present.

The Court may, in the meantime, let the accused go at large, or on bail or commit him to prison. Such an adjournment must not be for more than 15 days, but if the accused is committed to prison, the adjournment shall not be for more than seven days. In either event, the day following that, on which the adjournment is made, is counted as the first day.”

It is, therefore, good news that Nana Darkwa has been granted bail, but he must be advised not to think that what he did was just. He is no hero, except that the desire of some overzealous public officials to please rather ended up subverting the system and abusing processes.

Those who have been entrusted with national responsibilities and clothed with discretion must understand that under Article 296 of the 1992 Constitution, it is provided that, “Where in this Constitution or in any other law discretionary power is vested in any person or authority, that discretionary power shall be deemed to imply a duty to be fair and candid and that the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law.”

It appears to me that in the handling of the affairs of the irresponsible statement, we have failed in exercising discretion the way our constitution wants us to act. We need to guard and guide against a repetition of a similar incident, and this must be seen from a Ghanaian perspective, and not from the NDC nor NPP perspective.
Source:Daily Graphic

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