Should one suffer for obeying orders from superior officer?

When this payment was detected by auditors, I was handed over to the police and interdicted from the company. The financial controller is still at post although I obeyed his orders. Why am I being punished for obeying the instruction of my superior?

Frank Adu, Tema.

Dear Adu, If I got you right, you are complaining about the punishment meted out to you for obeying the orders of your boss to pay company's money for his private project.

Within the organogram of your company a junior officer is required to follow and obey the legitimate orders of his superior in the performance of duties. Indeed under many conditions of service, it is a misconduct punishable by termination for refusing to obey a legitimate order of your superior.

The emphasis here is the word 'legitimate'. The principle in law is that to raise the defence of superior orders, the command must be legal and the subordinate must have acted bona fide.

Where the instruction given to you, the junior officer, is illegal or tainted with some fraud, the junior officer is under no obligation to follow and perform the illegal order.

In the Ghanaian case of PEARCE v. THE REPUBLIC [1968] GLR 211, a storekeeper of the State Construction Corporation, was charged together with the works superintendent and one other employee of the corporation, with the offences of conspiracy to steal and stealing contrary to sections 23 and 24 of the Criminal Code, 1960 (Act 29).

The evidence of the prosecution was that a vehicle was intercepted carrying cement from the stores of the corporation without a covering waybill. Upon interrogation the driver explained that the works superintendent caused the vehicle to be loaded and the storekeeper directed him to send the consignment to a site.

At the trial the works superintendent was discharged for lack of evidence but the storekeeper testified that his boss, the works superintendent instructed him to supply the cement to the driver.

The court held that following Halsbury's Laws of England (3rd ed.), Vol. 10 p. 291 that 'The mere fact that a person does a criminal act in obedience to the order of a duly constituted superior does not excuse the person who does the act from criminal liability, but the fact that a person does an act in obedience to a superior whom he is bound to obey, may exclude the inference of malice or wrongful intention which might otherwise follow from the act.'

Further in the case of AMPAH AND ANOTHER v. THE REPUBLIC [1976] 1 GLR 403,

The appellants were executive director and accountant respectively of the Chamber of Mines.

The second appellant, either together with the first appellant or one C.B., had authority to sign cheques for and on behalf of the Chamber. Between July 1, 1971 and April 1973, the two appellants, to the exclusion of C.B., exercised their right to sign cheques for and on behalf of the Chamber and were able thereby to convert various sums of money belonging to the Chamber for their own use.

The appellants were consequently charged with stealing. The accountant's defence was that he obeyed the instruction of his executive director.

The court held that superior orders were not in themselves justification for committing an act that would otherwise be a legal wrong. To constitute this type of defence the belief in the legality of the order must be reasonable. The second appellant, in his capacity as accountant of the Chamber knew as a fact that the legal as well as the beneficial ownership in those funds was vested in the Chamber and not in the first appellant.

He (second appellant) was not only a moving party in the frauds that took place, but he never entertained any belief that the first appellant was legally entitled to order him to engaged in the dishonest appropriation of the funds of the Chamber.

He could not under any circumstances be heard to say that he made a mistake, bona fide or otherwise, in thinking that the ownership in the funds was in the first appellant.

The court further concluded that superior orders may be a defence to a member of the Armed Forces in cases where the orders were believed by the member concerned to be lawful and where the belief was a reasonable one, but strictly speaking, this type of defence does not extend to persons in civil employment.

Circumstances of this sort may only go strongly in mitigation of sentence, but could not be the only basis for acquittal.