Did the Attorney General, Godfrey Odame Lie in Court?

I recently questioned whether the Attorney General and Minister for Justice, Mr Godfred Yeboah Dame was manipulating the judiciary in Ghana, (see, “Is the Attorney General, Godfred Dame manipulating the Judiciary”, Ghanaweb, July 19, 2023). This was after the Attorney General (AG) successfully appealed the decision of the new trial judge for the COCBOD case, Justice Kwasi Anokye Gyimah to restart the trial de novo (afresh) rather than adopt the proceedings of the previous judge, Justice Clemence Honyenuga, which led to his unceremonious transfer 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 was reported last week that the MP for Assin North, Mr James Gyakye Quayson has reported the AG to the General Legal Council (GLC) for lying in court (see, “Gyakye Quayson drags Godfred Dame to the GLC over professional misconduct”, Ghanweb, August 17, 2023).

Mr James Gyakye Quayson is the opposition National Democratic Congress (NDC) MP who is standing trial for contesting the December 2020 parliamentary election that he won whilst ineligible to contest as a dual citizen of Ghana and Canada at the time he filed his nomination with the Electoral Commission (EC) to contest the election. His eligibility was challenged from the High Court to the Supreme Court and the Supreme annulled his election, resulting in a by-election that he contested and won. This article is analysis of the behaviour of the AG, his potential bad influence on the judiciary and its impact on the administration of justice in Ghana.

According to the two-page letter the MP sent to the GLC, and I quote part thereof. “At the last adjournment (19 July 2023) during cross-examination of the first prosecution witness, Richard Takyi-Mensah, after the witness had testified confirming that he had given a statement to the police to which he had attached certain documents, which testimony is also reflected in the police statement itself, the Attorney General responding to an application by my counsel for disclosure of the attachments the witness referred to, stated that there were no attachments to the court, which I am advised and believe to be true, is clearly contrary to the rules of professional conduct by lawyers in a case”.

The above quote, if true, should be sending alarm bells across the judiciary and the legal profession in Ghana, because it’s a very serious allegation against the most senior law officer of the state. In plain language, it means that the AG lied in court.

Another worrying aspect of the above quote, if true, is that it appears the trial judge accepted the alleged lies of the AG. Of course, the records of trial on the day in question is not available to the public so we do not know what the trial judge did about this allegation. However, the fact that the accused has had cause to complain to the GLC was an indication that the trial judge accepted the AG’s version contrary to what his own witness had admitted in court through cross-examination and also confirmed by the police in their statement to the court.

The question is, if the allegation against the AG is true, why did the trial judge not act as appropriate by seeking clarification from the AG? Is the trial judge scared of the AG in case he incurs the raft of the AG and he is also transferred? The duty of a trial judge is to ascertain the facts of the case from both the prosecution and the defence to enable him or her make evidence-based judgement. This is one of the cardinal principles of fair trial. It is therefore, strange that a witness admits that he had provided a statement with documents attached to the police which the police also admits in their statement but the witness’s own counsel contradicts him in court but the trial judge does nothing.

From my experience with the UK judiciary, it’s my view that in such situations where counsel contradicts his own witness in court, it was the duty of the trial judge to clarify from counsel whether his witness lied to the court when he admitted under cross examination that he had attached certain documents to his witness statement to the police. This is important because it’s possible that either the police did not provide the documents to the AG’s office or if they did the AG had not seen them. Assuming the police did not provide the attachments to the AG’s office, or they did but the AG had not seen them, was it not the duty of the AG to ask for the attachments after his witness admitted in court that he had given a statement to the police with attachments? Is his failure to find out about the attachments not abdication of his duty as a prosecutor or was it the arrogance that he is the AG and that the judge must accept his word because he is above the law?

However, the failure of the trial judge to establish the facts as to which is which is very troubling. I say so because if the trial judge had done so, then the accused would not have complained to the GLC.

It is also plausible that the trial judge might have made up his mind that the records of the court are that the prosecution witness had admitted under cross examination that he provided a statement with certain documents attached and that is a fact. Therefore, what the prosecution counsel said in court is irrelevant. However, because the AG was responding to an application for disclosure by the defence counsel the judge ought to have sought clarification from the AG on contradicting his witness. This is important because the judge must decide on the defendant's application for disclosure of the attached documents.

Another general problem within the Ghanaian judiciary that I have observed with concern is the appearance of automatic right by the state prosecution to refuse to disclose and share documentary evidence being relied on to prosecute the accused before trial. Fair trial requires that the accused must know the evidence against him or her in advance. This is important so that the accused can adequately prepare for his or her defence. In fact, in the UK failure by the prosecution to disclose and share evidence in advance before trial will lead to the case being dismissed by the court, unless there are very good reason/s why the documentary evidence was not disclosed and shared prior to the trial starting. Among the few reasons accepted by the courts are that no reasonable person would have known the existence of the documentary evidence prior to the trial starting. That is, the documentary evidence was unearthed, or its existence became known after the trial had begun. In that case, the party seeking to rely on the new evidence will have to apply to the court for permission to introduce the document as evidence and the other party will have the opportunity to accept it or oppose it for the judge to make a judgement if the two parties cannot agree by mutual consent. The document will only be accepted if it is critical to the success and fair trial of the case.

This is done to avoid delays during trial and the general principle adopted by the UK judiciary is that there should be no surprises in court. In fact, this is taken very seriously by courts because if it’s not strictly enforced by the courts, it could lead to miscarriage of justice. For example, the UK Inland Revenue prosecuted a farmer who made millions from converting red diesel, which is subsided for farmers into petrol. Inland Revenue had a video of the farmer converting the red diesel into petrol and selling it but did not disclose the video to the farmer’s solicitors. During the trial, Inland Revenue applied to the court to introduce the video evidence. The judge rejected the application and dismissed the case against the farmer despite the huge money that farmer had made from his illegal activity. This was because, had Inland Revenue disclosed and provided the evidence prior to the trial, the framer might have pleaded guilty and only required sentencing and for that reason, the trial would have been unfair to him.

But in Ghana, it’s not the judiciary that has control over disclosure but state prosecution, that simply refuses to disclose and share their evidence, compelling defence attorneys to always apply to the courts for disclosure, including going to appellate courts up to the Supreme Court and unnecessarily causing long delays in trial cases. This is not only against the principles of fair trial but also abuse of state power, which delays trials and make the administration of justice expensive to both the state and the accused. It is wrong and it must be stopped. Judges must take control of disclosure of evidence by all parties prior to the start of trial and punish those who fail to disclose in advance.

Why am I concerned about the AG potentially lying in court on disclosure of evidence and the trial judge not addressing the problem to the extent that the accused had to complain to the GLC?

There are three arms of government, the Executive, the Legislature and the Judiciary. Each must not intervene in the work of the other. However, the Judiciary has constitutional authority to hold both the Executive and the Legislature accountable. This is important because in Ghana the Executive is too powerful with a weak Legislature which is unwilling or unable hold the Executive accountable. Therefore, it is dangerous for the Judiciary to be controlled or influenced by the Executive. If the AG, a member of the Executive is that powerful to lie in court before a judge and the judge does nothing for what appears to be fear repercussion if he challenged the AG in court, then Ghana is in trouble.

Independent judiciary with fearless judges is critical for democracy, rule of law, good governance, transparency, and accountability in any country. Judges must be free to make judgements that are fair to all parties in accordance with the law (both the prosecution and the defence) without any influence or repercussion by the Executive. However, when Justice Kwasi Anokye Gyimah made the right decision to start the COCOBOD trial afresh, which the AG was not happy with and the judge was not only taken off the case but also transferred, it was a tacit message from the Executive that do as we say or get punished. It is therefore understandable that another judge would not challenge the AG in court even if he lied, though I will still give the benefit of the doubt to the judge, until the judgement on the defence’s application for the disclosure of the attachments is made.

I also do not understand why the MP is complaining to the GLC because the GLC like the Ghana Bar Association and the Judicial Council has shown to be biased to anyone with association to the opposition NDC for obvious reasons. For example, the president is on record to have said at a campaign event in the Assin North constituency that the constituents should not elect a candidate who will go to jail. Again, the minister for trade and industry, Mr KT Hammond is also alleged to have said that the MP will be jailed. Both the president and KT Hammond are lawyers from the ruling party. Has GLC invited them for disciplinary action? When Justice Clemence Honyenuga, then Appeal Court judge called for four more years for President Nana Akufo Addo, did the Judicial Council call him to explain? However, when the Dormaahene who is also a High Court judge, Osagyefo Oseadeeyo Agyemang Badu II said the MP should not be prosecuted, he was hauled before the Judicial Council. I am not suggesting that the high court judge was right to comment on the case.

Again, after the financial clean up in 2018, some bankers are being prosecuted but what has happened to the CEO of Menzgold who has dupped thousands of Ghanaians out of their life savings? The case has been adjourned over 30 times by the court because the AG has failed to provide advice on the case. Why? Is it because Menzgold CEO supported the president’s campaign in 2016 or because he went to the same school (Adisadel College) as the AG?

I am not against the AG. On the contrary, I admire him as one of the youngest AG in Ghana’s history. However, I have very serious concerns about his negative influence on the judiciary and the administration of justice in Ghana because I am passionate about rule of law, and strong independent judiciary in Ghana. Democracy, rule of law, good governance, accountability and the administration of justice thrive on a strong and independent judiciary that can hold the Executive accountable. We are in danger of a faux democracy if the Executive can influence and control the judiciary as it appears to be happening in Ghana. Martin Luther King Jnr said, “True peace is not the absence of conflict but the presence of justice”.

Kofi Ata, Cambridge.