Tagor's lawyers hit at A-G

Tagor was acquitted and discharged by a unanimous decision by the Supreme Court

Our attention has been drawn to a press release dated July 30, 2009 on the above mentioned case issued by the Honorable Attorney-General and Minister of Justice.

The said press statement raises a number of disturbing issues regarding the acquittal and discharge of our client, Mr. Kwabena Amaning (a.k.a Tagor) – issues that touch the very basis our criminal justice system. We wish to respond directly to some of these issues raised but before we do so, we wish to take the opportunity to comment more generally on the unanimous decision of the Court of Appeal and thus correct certain misconceptions regarding the conviction and subsequent acquittal and discharge of our client.

First of all, as a general matter, we wish to state categorically that in our submissions filed before the Court of Appeal, we argued strongly that the case at bar was not only about our client's innocence or guilt, but that it was about salvaging time-honoured legal and constitutional principles of criminal justice which had been jettisoned by the learned trial Judge in his decision to convict our client.

We had argued for instance that: “A criminal trial is a key part of the administration of justice and its fairness is a major source of the repute of the system. We should not lose sight of the consideration that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to [the] full protection of the Constitution. Therefore, short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system.”

It was our case before the Court of Appeal that by side-stepping the constitutional protections afforded not only our client but all of us as citizens (and potential criminals), the learned trial judge was undermining the very foundations of our criminal justice jurisprudence. In our considered view, the High Court, as a court of record, had set a precedent which, if not overturned, had the potential to endanger the life, limb and liberty of the ordinary Ghanaian. Consequently, there was, and still is, a public-interest justification for overturning such a dangerous precedent.

Second, we wish to state that, as legal professionals, we share the Attorney-General's and the Government's desire to fight the menace that the narcotics trade poses to our dear country. However, we take the view that the fight should be fought according to sound legal principles as clearly defined by our Constitution.

If pushed to choose between winning the war on drugs while end-running our constitutional principles and losing that war while upholding the democratic principles of our Constitution, we would choose the latter option without blinking. In other words, we should not as a nation sacrifice the very principles upon which we strive to build for ourselves and our children a society which enjoys, in the words of our Constitution, “the blessings of liberty, equality of opportunity and prosperity”, in order to achieve narrow political ends. What the Court of Appeal did in its unanimous decision was to uphold the time-honoured values of our Constitution and the justices should be commended for that.

Third, we wish to draw the attention of the Attorney-General and Minister of Justice to the fact that the “huge public debate provoked by the acquittal and discharge” of our client and co-accused, Alhaji Issah Abass, is healthy for our democracy and should not push our criminal justice system in the direction of penal populism. We should be careful to draw clear lines of distinction between what is in the public interest and what is interesting to the public. There is no doubt in our minds that the trial and conviction of our client was interesting to the public; it provided sensational news for our media houses which got most people hooked on for the entire period of the trial. But we equally have no doubt in our minds, after thorough and professional review of the law and the evidence, that the trial and conviction of our client were not in the public interest as defined under our Constitution.

Fourth, we wish to state that this case was not won on the basis of legal technicalities as has been reported by sections of the media. The Attorney-General would agree that both her Department and our good selves filed legal arguments on the substantive merits of the decision of the trial High Court judge and that the Court of Appeal thoroughly evaluated our legal arguments as well as the decision of the trial judge before rendering its well-reasoned unanimous opinion. Therefore, it is wrong for sections of the media to give the impression that we simply exploited loopholes in the prosecution's case and got an otherwise guilty criminal off the hook.

Having made the foregoing general comments, we will now proceed to address directly two critical issues raised in the press statement of the Attorney General and Minister of Justice.

The first relates to the reference in the press statement to “self-confessed drug barons” being allowed to walk our streets freely. We consider that an unfortunate statement in light of the circumstances under which our client was tried, convicted and sentenced by the trial Judge. During the trial of our client, the prosecution sought to give the impression that they had a smoking gun in the form a confession by our client to dealing in narcotics. But we now know, from the judgement of the Court of Appeal, that the so-called smoking gun theory was utterly flawed.

The taped conversation, in the view of the Court of Appeal, and in our considered opinion, did not qualify as a confession under our law and Constitution. It was also made abundantly clear by the Court of Appeal that even if we accepted the smoking gun theory, the prosecution woefully failed to adduce credible independent corroborative evidence to back the statements attributed to our client in the mysterious tape. Furthermore, the admissibility of the tape, according to the Court of Appeal, was illegal as it failed to comply with the requirements of our law of evidence on authenticity of documents. Finally, it was made clear by the Court of Appeal that in general the prosecution failed to meet the standard of proof beyond reasonable doubt and also that the charge sheet which formed the basis of the trial was incurably bad and unknown to our jurisprudence.

In light of these findings and the flawless reasoning of the Court of Appeal, especially that expressed in the well written opinion of Justice Yaw Appau, it is disturbing, to say the least, for the Attorney-General and Minister of Justice to leave the impression in the said press statement that our client has walked free notwithstanding being a “self-confessed drug baron.” We hope that that is not the meaning intended by the Attorney-General.

The second issue arising from the press statement that we wish to address directly relates to expressed commitment of the Attorney-General to “best practice in terms of investigation and prosecution of cases involving narcotics.” As part of that commitment, the Attorney-General unveiled her Department's new strategy of considering “critically the issue of wealth acquisition vis-à-vis the payment of taxes as a deterrent to those hiding behind the cloak of business to flaunt their ill-gotten wealth.” On the one hand, we welcome wholeheartedly the commitment to [international] best practice in criminal proceedings, as that was critically lacking in the case brought against our client. Indeed, in our submissions before the Court of Appeal, we relied on international best practice in the form of precedents from Canada, the United States of America, India, the United Kingdom and South Africa to press our case that the judgment of the trial court could not stand the test of legality. The Court of Appeal accepted these precedents as persuasive authority for our arguments. As lawyers, our use of international best practice is limited to what we can do with judicial precedents from other jurisdictions with like legal systems.

On the other hand, we hope that the reference here to “best practice” does not mean unbending adherence to the wishes of foreign countries. We do know that the fight against drugs is fast becoming a global fight and that certain powerful countries are willing to win that war in the developing world by pressuring these countries to do whatever it takes to win, including undermining the basic tenets of their own legal systems. We should hope that Ghanaian authorities would resist the temptation to bend over backwards to please foreign countries in violation of our Constitution.

In conclusion, we wish to reiterate here our view that the implications of this case go beyond the trial, conviction and sentencing of our client. Among others, the trial and wrongful conviction portends ill for the basic functioning of our criminal justice system and should be seen in that light. We cannot undermine our core constitutional values in the name of the fight against drugs.

By Dr. Dominic Ayine, Kissi Agyebeng, Kwesi Baffoe Intsiful,

Counsel for Kwabena Amaning