Is the Attorney General, Godfred Odame Manipulating the Judiciary?

Two of President Nana Akufo-Addo’s ministers that I respect and admire most are Gloria Akufo who served as Attorney General and Minister of Justice in the first term and the other is her replacement and current Attorney General and Minister of Justice, Mr Godfred Yeboah Odame. I respect them for two reasons. Gloria Akufo for her candid legal advice to government on the infamous Agyapa Royalty contract, which condemned the proposal to failure and also ended her ministerial career and for Mr Yeboah Odame, his legal opinion on the draft LGBTQ+ Bill. Both have also chalked victories in defending Ghana’s interests at international courts and at home. However, of late, I am beginning to have some concerns about some cases that the Attorney General and Minister for Justice has been involved in. This article is a discussion on one of such cases.

The case in question that the Attorney General’s actions and omissions give me concern is the COCOBOA corruption trial. There has been a number of avoidable problems with this case since its inception and I have almost come to the conclusion that politicians from the two leading parties, NPP and NDC are not interested in prosecuting political corruption in the fight against corruption. Instead, they are deceiving the Ghanaian public with such show trials that never ends. Why do I say so?

The first problem with the trial was the defendants’ access to the documentary evidence being relied on by the prosecution. This resulted in a number of applications to the court by the defence team, including going to the Appeal Court that unduly delayed the trial. I cannot fathom why the prosecution would want to hide evidence from the defendants only to spring them on the defence in court from a magic wand. It does not make sense because it is in the interest of both the prosecution, defence as well as the court that documentary evidence from both parties are disclosed and exchanged in advance before trial begins to ensure speedy and efficient trial and to avoid any unnecessary adjournments, though I appreciate that at the time, Mr Yeboah Odame was not the substantive Attorney General but the deputy.

The second problem was the elevation of the trial judge, then Justice Clemence Honyenuga, Appeal Court judge sitting at the High Court to the Supreme Court and the refusal of the Attorney General to allow a change of the trial judge after he was nominated to the apex court of the land by the president or after his confirmation. How could a Supreme Court Justice also sit as a High Court judge? A Justice of the Supreme Court cannot even sit as an Appeal Court judge, let alone a High Court Judge. The Attorney General was so determined to have this judge continue the case that he failed to realise that the judge had almost reached his mandatory retirement age of 65 and may not complete the trial.

What was interesting is that when the defence challenged the trial judge continuing with the case at the Supreme Court for being bias and won, the Attorney General sought a review of the decision and got it reversed for him to continue as trial judge. Then finally, the judge retired from the bench as he had attained the 65 years retirement age for judges, compelling the Chief Justice to appoint a new judge for the case.

Another twist in the episode of the unending trial was the Attorney General going to the Appeal Court to challenge the decision of the new Appeal Court trial judge to restart the trial de novo (afresh). The Attorney General won his appeal but before the Appeal Court decision was announced, the new trial judge, Justice Kwasi Anokye Gyimah was unceremoniously transferred from Accra to Kumasi by the Chief Justice (see, “COCOBOD trial: Justice Gyimah to be transferred from Opuni’s case – Report”, Ghanaweb, June 26, 2023).

It’s important to note that Justice Kwasi Anokye Gyimah gave cogent reasons for his decision to start the case de novo and among others citied Section 80(2)(a) of NRCD 323, which enjoys the court to assess a witness’s demeanour in determining his or her credibility. The judge added that, “much as that may be the right position, in a criminal trial where the liberty of the accused is at stake and where the accused is by law presumed innocent and also entitled to a fair trial, any factor, however minimal or insignificant its effect, that will enhance the opportunities for the fair trial of an accused person should not be overlooked by the court.”, (see, “COCOBOD trial: Adopting previous proceedings or not is at judge’s discretion – Attorney General”, Ghanaweb, July 15, 2023). In fact, the Attorney General had earlier relied on Section 80(2)(a) of NRCD 323 (assessing a witness’s demeanour in determining his or her credibility) to make to argue for the Justice Clemence Honyenuga not to be changed as trial judge at the Supreme Court.

The AG on the other hand, disagreed with Justice Kwasi Anokye Gyima and argued that the judge misdirected himself in the application of the principles regarding the adoption of evidence in a trial. That, his decision to start the case de novo will occasion a miscarriage of justice as it will hinder an efficient trial of the accused persons in the instant case. Is it not interesting that the prosecutor is now arguing for the defendant?

What was strange is that after securing the reversal of the decision by Justice Kwasi Anokye Gyima to start the case de novo at the Appeal Court and the judge being transferred to Kumasi, the AG then confirmed that it is the sole prerogative of a trial judge to decide whether to adopt previous proceedings or not. In fact, he stated that, “the true position of the law, is actually up to the trial judge to make that determination. The trial judge makes that determination based on factors that he considers necessary.” He made these remarks while speaking to journalists after securing a favourable decision on the case at the Appeal Court (see, “COCOBOD trial: Adopting previous proceedings or not is at judge’s discretion – Attorney General”, Ghanaweb, July 15, 2023).

Therefore, why did the AG appeal? I wonder what the the Appeal Court judges who sat on the appeal and reversed the decision of their peer, Justice Kwasi Anokye Gyima felt when they read or saw the above comments to the media by the AG? If I were one of them, I would have felt deceived or manipulated by the AG.

The above clearly indicates that Justice Akwasi Anokye Gyima was within the law and his right to start the case de novo but the AG did not like it, so he appealed to the Appeal Court and got the judge’s decision reversed. Of course, it is his right to appeal if he disagreed with the decision, but the question is, did he know in advance that he will be successful at the Appeal Court? I pose this question because, the AG knew in advance that the judge was right to start the case de novo because that is what the law says. I cannot say for sure that the AG knew in advance that the Appeal Court would reverse the decision of the trial judge but there is an Akan proverb that, if a blind person says s/he will stone you, it means s/he already has the stone.

Moreover, one does not appeal because s/he disagrees or does not like the decision of a judge but that the decision is wrong in law. Therefore, when the AG knew that by the laws of Ghana it was up to the judge to decide whether to adopt the previous judge’s evidence or start the case de novo and opted for the latter, yet went ahead and appealed, one could not be wrong to suspect that, like the proverbial blind person, the AG might have had the stone in his hand in advance.

Again, though the judge was sitting at the High Court, he is an Appeal Court judge and therefore a senior judge. In addition to his seniority, he provided the legal basis for his decision, which was not only rooted in law but also to ensure fair trial.

Of course, this trial has been ongoing for far too long and therefore I sympathise with the AG’s view that the decision by Justice Kwasi Anokye Gyima to start the case de novo was retrogressive as it meant witnesses appearing twice. But what is retrogression in law and is it part of Ghana jurisprudence? In my view, no. That is not a good reason for his appeal because fair trial is more important than retrogression. That is why the 1769 William Gladstone doctrine is still important in criminal trials. That is, “the law holds that it is better for ninety-nine guilty persons to escape, than one innocent person be convicted.”

The question is, why was Justice Kwasi Anokye transferred to Kumasi within a very short time? Was he transferred because he incurred the displeasure of the AG by wanting to start the case de novo, which is his prerogative as a judge and not that of the AG, who is a member of the Executive or the Chief Justice as the head of the judiciary?

Was the judge being punished for wanting to assert his independence, which all judges must do? Was his transfer a message to other judges to toe the line of the Executive or be transferred? Transfer of judges per se is not a sanction since they are public servants but when done suddenly for whatever reason could be seen as interference by whoever ordered the transfer. Again, if the transferee has young children at school, it could disrupt their education as they have to change school with their parents relocating to a new city, unless they are in boarding school.

It also appears that the AG will appeal any judgement which is not in favour of the state until he gets a favourable decision. There is nothing wrong with that and in fact, it is within the rights of the sate to appeal unfavourable judgements. However, such approach could also make the public to wonder if justice is being manipulated by the Executive arm. This is particularly so because often, it is the AG himself or his deputy who appears before the appellate courts. As a member of the Executive such regular appearance in courts also raises questions, especially in Ghana where the Executive has power over the promotion and appointment of senior judges. Moreover, it creates the impression that the AG and minister of justice has less work to do so he is free to appear in courts as often as he likes. Remember, the principal duties of the AG and minister of justice is to advise the Executive and occasionally appear in court on strategic cases. In other jurisdictions where the judiciary is truly independent with the promotion and appointment of senior judges in the hands of an independent judicial appointment commission such as the UK, the Attorney General and minister for justice rarely appears before appellate courts. It is to safeguard the separation of powers and maintain the independence of the judiciary.

In conclusion, justice must not only be done but must also be seen to be done. The circumstances of the transfer of Justice Kwasi Anokye Gyima to Kumasi because he decided to start the trial de novo do not augur for fair trial and justice being seen to be done. It is also damaging to the independence of the judiciary and individual judges.

Personally, any corruption or criminal trial that has been ongoing for over three years, is an indication that the Executive is not interested in a successful prosecution. These include the Gregory Afoko trial for the murder of the Upper East NPP Regional Chairman, the late Adams Mahama and that of the murder of NPP MP for Abuakwa North, the late JB Danquah Adu. The COCOBOD is one of such cases that the state is not interested in a successful prosecution. It’s a game that NPP and NDC politicians are playing with Ghanaians. None of the two parties are interested in prosecuting politicians for corruption or crimes of political nature. The COCOBOD trial is nothing but a scam. The shenanigans since the trial began five years ago are evidence that the trial is a charade, a waste of public resources and scarce judicial time. If they are guilty, jail them and stop pretending as if you are fighting corruption. On the contrary, politicians from both parties are encouraging corruption with 419 scam trials that never ends.

Kofi Ata, Cambridge, UK