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22.04.2021 Feature Article

Never Plead Guilty!!!

Never Plead Guilty!!!
LISTEN APR 22, 2021

Dateline – Thursday 5th February 1981. Location – 5 Battalion of Infantry, Arakan Barracks, Burma Camp, Accra. Time check – 0500 hrs. I was a Lieutenant, Ghana Army, and the Duty Officer for the night.

Three officers from the Military Intelligence entered the offices of the Adjutant, where I was, and declared that I was under arrest for planning a military coup d'etat. After subsequent interrogation by a panel I was driven straight to the condemned Block of Nsawam Prisons on remand custody.

About a month later, Major Adutu, from Legal Directorate of the Ghana Armed Forces brought some papers to me at the Prisons in Nsawam. They were charges for a court martial.

Through Captain Boakye Gyan, I knew Major Aduta, a lawyer very well. He told me, point blank: “Effah, the charges are FOUR – the most terrible of all is count one, which is MUTINY, which can earn you the death penalty, but we are not sure so we have made it ALTERNATIVE to three counts of MISCONDUCT under the notorious Section 54 of the Armed Forces Act – so, even if you are freed from count one, there is no way you can be freed from the alternative charges……..

I was a law graduate infantry officer, and I reflected for a long time and concluded that there is no evidence that I am planning a coup, so I will be freed from the MUTINY charge, but the MISCONDUCT – throughout all history, no solider has been charged with MISCONDUCT and gotten away with it. Never.

So I decided to plead NOT Guilty to the mutiny charge, and GUILTY to all the alternative charges. When the Court convened, they recorded my plea, but still decided to try me, so I got angry and changed my plea to NOT GUILTY on all the charges.

When the prosecution closed its case I made submission of no case on the MUTINY charge and the General Court Martial presided over by Air Vice Marshall Kotei (brother of the executed Army Commander Major General Kotei) upheld my submissions and acquitted and discharged me of the fatal charge of MUTINY.

From this experience I was called to the Bar in 1986 with the basic mindset that NEVER PLEAD GUILTY. Never.

Fortunately in Ghana, unlike the French system, when you are charged with an offence, it is the duty of the prosecution – the Police and Attorney General – to bring up evidence to convince the court that, you are guilty – no wonder at the investigation level the police will do everything possible to extract confession statements from the accused.

Of course when you are caught red handed and you plead NOT Guilty and you take the court through a laborious long trial of witnesses and so on, you tend to annoy the Judge, who may, upon conviction, give you maximum sentence.

But, that notwithstanding, it is worth the risk, because, human nature being what it is, the Judge may be transferred, or even die, witnesses may travel or become unavailable, exhibits disappear……reader, take my word – NEVER PLEAD GUILTY!!!!

But why all this?

Last week Friday 16th April 2021, the Circuit Court in Accra after convicting Rosemond Brown popularly called Akuapem Poloo for changing her plea of NOT Guilty to that of Guilty, sentenced the beauty prodigy to 90 days imprisonment.

When she was initially brought before the Court, the police charged her with three counts: publication of obscene materials and engaging in domestic violence (two counts).

In this era of police witness statements, with very biting incisive cross examination, how can the Police prove publication of “obscene material” – who said the nude picture of a lady is obscene? What happens at our beaches every day? Go to Labadi Beach and see.

And, “engaging in domestic violence”? Did you say “violence”? Any physical assault? Or you are using violence in academic sense?

My colleague lawyers may disagree with me, but I think it was very possible, using all the canons of legal defence, overtime, to have gotten her acquitted and discharged.

And you see, the greatest danger is that an act is NOT a crime unless there is the mental element – you know, Almighty God hates ADULTERY – but, if I meet a striking beauty and I ask madam are you married and she says no, please madam I don't want problem with God, are you married, and she says “what is your problem. I said no” and I end up in bed with her only to discover that she is somebody's wedded wife – will God punish me? Obviously not!!!

So, when you say you are guilty, it means you are confessing that YOU INTENDED THE CONCEQUENCES OF YOUR ACTION!!!! Lawyers call it “MENS REA!!”

And, reader, you know, in 1974, at the Law Faculty in Legon, Professor S. O. Gyandoh, lecturing us on Ghana Legal method, told us there was something called “the inordinate major premise” of every Judge – the totality, mindset and complete mentality of the Judge – because the law is in the bosom of the Judge!!

Imagine a female Judge, beaten up by her husband going to Court to find the first case brought by the Police being a man charged for beating his wife, and the man pleading guilty!!!! I bet she will jail him maximum sentence of two years!!!

Akuapem Poloo was very lucky. Her Honour could have quite rightly jail her 18 months, but, to prevent public outcry, to prevent bail pending appeal and to ensure that she goes in and serve the sentence, in full – go in for 90 days!!!!

Reader, NEVER PLEAD GUILTY!!!

Let me end with the greatest challenge to my conscience as a lawyer. In 1988, two years at the Bar, I met a woe beg one woman at the precincts of the court, and when I asked what was her problem she gave me a handwritten letter appealing for her son.

Apparently the Police made a swoop at Tudu and arrested some boys including Kwaku Acheampong who was deeply asleep. They charged them with “robbery” and advised them to plead guilty and ask for mercy. Kwaku Acheampong pleaded guilty and the Greater Accra Regional Tribunal presided over by Lawyer Agbesi convicted him and sentenced him straight to death by firing squad.

I filed a Notice of Appeal and asked for record of proceedings and while awaiting the Record of Proceedings, Jerry Rawlings signed the death warrant and Kwaku Acheampong was executed by firing squad!!!

Never plead guilty. Never plead Guilty. Never plead Guilty!!!!!

By Nkrabeah Effah-Dartey

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