Cutting The 'Gordian Knot' Over The Judges' Corruption Issue

Ghanaians have been rightly shocked by the video evidence they have seen or heard about, which has graphically demonstrated that some members of our judicial service are corrupt to the marrow.

We cannot comprehend why persons elevated to the most powerful position in the land – people authorised to sentence a fellow citizen to death, or imprisonment, or an enormous fine, or the forfeiture or confiscation of his property – could even conceive of allowing money to influence them in the performance of such a sacred duty.

Our puzzlement – or scorn – multiplies when we consider that such a judge's financial future has ostensibly been secured by no less an instrument than the Constitution of the nation. Yes, a judge is allowed to retire on his/her salary! This is meant to insulate judges from enduring the daily hardships which other citizens have to experience, as they try to survive the harsh realities of life in 21st Century Ghana. A “cushioned job”, if ever there was one.

Our shock has also been made all the greater because we have been made to realise that the word “contrition” does not appear to lie within the intellectual province of the allegedly corrupt judges. The reaction of some of these members of the judiciary to the exposure of their cupidity by Anas Aremeyaw Anas, has been to confirm, if some of us had any doubt, that that we erred greatly in giving some of them the right to condemn their fellow citizens to death, or deprive them of their liberty, by incarcerating them.

But rather than donning the cap of “mea culpa” (my guilt) in the face of the evidence Anas has produced, some of these judges and their accomplices are resorting to multifarious litigations to try and use complex legal technicalities negate the effect of the video evidence against them.

Some of the judges caught on Anas's cameras say they were “entrapped” by Anas; that Anas “invaded” their “privacy”. But isn't that ridiculous? Did they expect their corruption to be exposed to the public by a divine act that would have caused them, involuntarily, to confess to the public that they had taken bribes? They wanted an external force to come and loosen their tongues to lay bare what they had done?

How can a judge who is supposedly learned in the law, contemplate arguing that a criminal act carried out with clear intent, can be overlook, when exposed, on the grounds that the act was committed through “entrapment”? Can a judge who has sworn an oath to render justice to all, without fear or favour, turn round and claim that he/she broke the oath merely because an inducement was offered to “entrap” him/her?

The fact is that some of the judges know only too well, how to swamp the courts with side-issues, the determination of which will take up the time and energies of, and thereby frustrate, the Appeal Court Judge whom the Chief Justice has appointed to deal with all the issues relating to the disciplinary process she has initiated them.

That Judge's work can be obstructed by the usual “applications” for adjournment. His decisions may be appealed against, all the way to the Supreme Court; even judgements of a panel of the Supreme Court can be appealed against – to ”the full Bench”! And it all takes time.

Meanwhile, the gravamen of the dastardly act – whether some judges have taken bribes or not, and if so, what should happen to them – will remain untouched.

There is little doubt that the current situation is the logical consequence of the way Anas and his legal advisers chose to pursue the matter. Through his petition, Anas succeeded in persuading the Chief Justice to institute disciplinary proceedings against the suspected members of the judiciary service, in line with Article 146 of the Constitution. But the public would, I think, find that procedure a tad unsatisfactory, given that the proceedings under it are to be “in camera”.

However all is not lost. For there is nothing to stop the Attorney-General from prosecuting a judge for corruption, while that judge is also subject to the the normal removal procedure, under Art. 146 of the Constitution. The two should be thought of as separate processes, although, perforce, they would make use of the same prima facie evidence.

Thus, this is how I would “cut the Gordian Knot” myself:

1. The Attorney-General should, considering the video material as constituting more than adequate prima facie evidence that the CRIME of bribery has been committed, immediately institute proceedings against the allegedly corrupt judges, for that CRIME of accepting bribes.

(2) The Disciplinary Proceedings against them, which they are challenging, should, in fairness to them, be allowed to go ahead, without prejudice to their trial for allegedly committing the CRIME of bribery.

(3)But, also in fairness to the Ghanaian public (which is yet to recover from the immense shock of seeing their revered “Lord Justices” on video, acting in the most reprehensible manner imaginable) the prosecutions should be carried out not before Ghanaian judges (innocent though many of them are) but before judges invited from fellow Commonwealth countries, such as Kenya, Nigeria, South Africa, or Trinidad and Tobago, Canada, New Zealand or Australia..

Now, there are precedents with regard to such collaboration on legal issues with fellow Commonwealth countries: (a) Mr Justice Olumiwa Jibowu (from Nigeria) was brought over, in 1955, to preside over the “Jibowu Commission” that investigated allegations of widespread corruption in the affairs of the Ghana Cocoa Purchasing Company CPC).The allegations concerned how members of the then ruling Convention People's Party had been milking the funds of the CPC for their personal use; (b) our own current Chief Justice has sat on panels that selected superior court judges in Kenya; (c) Ghana has provided two Chief Justices for Commonwealth countries in the past: one was Mr Justice Fred Apaloo (Kenya) while the other was Mr Justice Robert Hayfron-Benjamin (Botswana).

We've also sent judicial officers to the Gambia among other places. Even in the sphere of military law, we once sent the late General (then Colonel) Kutu Acheampong and the late Colonel Frank Bernasko to Trinidad, to conduct a court martial involving Trinidadian coup plotters charged with treason. If we gladly contribute to Commonwealth juridical events, when asked by sovereign Commonwealth countries, is there any reason why we should think it beneath our dignity to reciprocate by inviting Commonwealth judges to ensure that in this sensitive matter of corrupt Ghanaian judges, justice over our judges is not only done, but “MANIFESTLY SEEN TO BE DONE”?

Through steps like those outlined above, we can deal with this sorry issue in a satisfactory manner, despite its complexity. A note of caution should be sounded here: We bungle it at our peril! For fudging the issues could have serious economic repercussions for us, in the sense that unless we act ruthlessly and transparently to eliminate corruption within our judiciary, foreign investors will be chary of investing their funds in our country, for fear that if they get involved in legal disputes, our judiciary will render unfair judgements against them – unless, of course, they are prepared to pay bribes! Or, even worse, unless they agree to pay bigger bribes than their opponents are willing to pay! Justice for sale is not repeat not the cup of tea of serious investors.

Now, here are extracts from some of the laws, under the Ghana Criminal Code, that prescribe punishment for PUBLIC OFFICERS who accept bribes in the execution of their duty. The omnibus relevant law is called “The Criminal Code (Amendment) Act, 2003 (Act 646).”

Section 179C of this Act, entitled “Using Public Office for Profit”, provides that : “Any person who—

(a) while holding a public office corruptly or dishonestly abuses the office for private profit or benefit; or

(b) not being a holder of a public office acts or is found to have acted in collaboration with a person holding public office or the latter to corruptly or dishonestly abuse the office for private profit benefit,

commits an offence.....
“Section 239—Corruption, etc. of and by Public officer, or Juror.

Every public officer or juror who commits corruption, or wilful oppression, or extortion, in respect duties of his office, shall be guilty of a misdemeanour....”

Under Act 29, "misdemeanour" shall be construed in accordance with section 296 of the Criminal Procedure Code. Section 296 of the Criminal Procedure Code (Act 30) deals with sentencing for various classes of offence and is as follows: Section 296—General Rules for Punishment. And (4)of Act 29 provides that “Where a crime, not being a crime mentioned in sub-section (5), is declared by any enactment to be a misdemeanour and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for a term not exceeding three years.”

“Section 240—Explanation as to Corruption by Public Officer, etc.

A public officer, juror, or voter is guilty of corruption in respect of the duties of his office or vote, if he directly or indirectly agrees or offers to permit his conduct as such officer, juror, or voter to be influenced by the promise, or prospect of any valuable consideration to be received by him, or by any other person...

“Section 244—Acceptance of Bribe by Public Officer, etc., After Doing Act.

If, after a person has done any act as a public officer, juror, or voter, he secretly accepts, or agrees or secretly to accept for himself or for any other person, any valuable consideration on account of such act, shall be presumed, until the contrary is shown, to have been guilty corruption,.., in respect of that act, before the doing thereof.....

“Section 246—Explanation as to Oppression.

A public officer or juror is guilty of wilful oppression in respect of the duties of his office if he wilfully commits any excess or abuse of his authority, to the injury of the public or of any person.

“Section 247—Explanation as to Extortion.

A public officer is guilty of extortion who, under colour of his office, demands or obtains from any person, whether for purposes or for himself or any other person any money or valuable consideration which knows that he is not lawfully authorised to demand or obtain....

“Section 253—Corrupt Promise by Judicial Officer or Juror.

Whoever, otherwise than in the due execution of his duties as a judicial officer or juror, makes or offers make any agreement with any person as to the judgement or verdict which he will or will not give as a judicial officer or juror in any pending or future proceeding, is guilty of a misdemeanour.”

A lot of meat for the Attorney-General and the Director of Public Prosecutions to chew on, wouldn't you say?

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By Cameron Duodu