30.10.2003 Feature Article

Public Tribunals And The NRC

Public Tribunals And The NRC
LISTEN OCT 30, 2003

The Public Tribunal system and person’s closely connected to it, should not expect any justice from Justice Amua Sekyi’s National Reconciliation Commission. Before his appointment as Chairman, National Reconciliation Commission, speaking at the 15th Speakers Breakfast Forum, Justice Amua Sekyi attributed corruption in the Judicial Service to the Tribunal System and advocated that it be scrapped. Mr Justice Amua Sekyi strongly objected to the continued existence of the Regional and District Tribunals saying: ‘The State cannot spend money and other resources on them, when the members have become corrupt in the discharge of their responsibilities assigned to them. Mr. Speaker it is my wish that the tribunal system is abolished because it is a waste of public resources.’ ‘What makes the tribunal system more dangerous is the fact that panel members, apart from the Chairman, are laymen in law, and therefore ‘only give their consent, whether a particular judgement by the panel is fair or not.’ Whether he knew what was coming or was part of the team working to dismember the Tribunal System or that it was a psych up for things to happen, nobody knows, but what became certain was that the Tribunal System was scrapped. The Regional Tribunals which is constitutionally entrenched, of course could not be scrapped, but what they did was to turn all the Regional Tribunal Chairmen into High Court Judges, effectively undermining the Constitutional provision, thus effectively disbanding the Regional Tribunals through the back door. He was later to be appointed Chairman NRC. The conduct of proceedings at the NRC leaves much to be desired. Especially, on the aspect of non verification of the testimony of witnesses. In such an important exercise to record human rights abuses in this country, the lack of cross examination and truth verification ascertainment is a flaw in the process and there is no way an accurate record of human rights abuses in Ghana could be compiled. The lack of cross checking has opened the floodgates in the making of accusations and allegations, from outright lies to half truths. For some the reason is to get a fat compensation but for others it is actuated by hatred and malice. As such the work of the NRC has been turned into another human right abuse, by way of mental torture on innocent victims, as invariably the lies are splashed headlines in the media, the damage almost irreparable. Firsthand, second hand, third hand and even fourth hand hearsay, have been made to look as absolute truths without recourse to the necessary safeguards prescribed by law and common sense. In many of the Commissions of Enquiries this country has experienced, Counsel’s for the various Commissions have examined and cross examined witnesses, this has been the case for even those being probed in their absence. The work of the Investigations and Research Department of the NRC is to cross check and feed members with contradictions and lies on statements filed by potential witnesses, to enable Commissioners to ascertain the truth and question such witnesses when they appear.

But what are we seeing at the NRC? Immediately a witness testifies before the Commission, he or she as the case may be is congratulated and praised and in some cases told for being lucky to be alive, these comments etc, by law presupposes that the evidence has been admitted as the truth therein. This practice invariably has been the trend rather than the exception. When even they themselves have not questioned the witness.

In a private discussion with some judges, lawyers and journalists about the processes and procedures being adopted at the NRC, when Mr. Adumua Bossman was denied the use of Counsel and later giving some few minutes to finish his cross examination, this made a very renowned judge to remark privately that “may be they are looking for reconciliation but not the truth” .But the question is can there be reconciliation without the truth?

The first natural response to lies by any person is anger and revulsion, so then more division and despair is going to be the end product of this exercise than reconciliation.

But what is disturbing is that Justice Amua Sekyi anti- tribunal sentiments are seriously playing into the conduct of proceedings before the NRC from obvious acts and omissions, by case to case analysis.

This detail study and analysis will soon be published to forestall lies and half truths being recorded as absolute truths, in order to probably prepare the setting for whatever conclusions or inferences one may want to come to at the end of the day.

Witness by witness, from ex-Cpl. Cpl. Alhassan Adama Akati, ex-Cpl. Sampson Darkwa, Mr Chris Asher, ex Cpl. Nkrabea Opoku Ware, Nana Yaw Boakye, Capt (rtd) Edward Agyei Ampofo, the Case of the Gokas, the Teshie La Scala shooting case, and of late his acceptance of a submission by a witness to the effect that the accused in the Goka case had the right to overthrow the PNDC government hence their conviction by the tribunal was a violation of Constitutional provisions, is not only outrageous but legally without any basis.

The PNDC was the de facto legal government of Ghana and exercised Executive and Legislative powers in Ghana from 1982-1993. It is trite law that constitutions cannot bind itself, hence provisions asking people to resist oppressive and illegitimate governments does not override new Constitutions adopted and promulgated after a referendum.

In any case no accused in any of those trials pleaded or made any such submissions about justification for overthrowing a military or illegal government. They pleaded on the general issues by denying the charges, hence a plea of not guilty.

So how does a non party to the case, after 17 years post trial period, make a submission never canvassed at the actual trial, before the NRC, that because they were trying to overthrow an illegal government, the trial was in violation of a previously abrogated constitution, which mandated Ghanaians to resist military takeovers and therefore the said trial and conviction was null and void, and the submission is gleefully accepted to be a true legal position.

And the NRC gives an indication that it is going to recommend on the basis that, the application is true and therefore, a hint of a view to declaring the said trials and convictions null and void. In any case does the NRC have the power to act as an Appeal Court over tribunal decisions?

Are they going to declare the trials of Lt Arthur and Lt. Yeboah who in their attempt to overthrow the National Liberation Council killed Gen. Kotoka? The NLC was also a military regime. Have they ordered the exhumation of the bodies of Lt. Arthur and Lt. Yeboah, after all it is claimed they also wanted to restore President Nkrumah the overthrown civilian leader then in exile.

Why has he not tried to do the same or used that yardstick for example for the court which jailed Kwaku Baako and Haruna Attah? By his analogy was the court which tried and convicted them, and the higher court which denied them bail a tribunal? Did their ordeal not happen in a constitutional environment, presided over by some of the Judges free from tribunal infection?

Can he say and vouch as a matter of fact and truth that the trial and conviction of Kwaku Baako and Haruna Attah was devoid of corruption and or executive influence? Was that trial independent of the executive arm of government?

This is part of Justice Amua Sekyi’s profile as posted on the NRC web site:

“From 1977 to 1986, he was a High Court Judge. In 1986 he was made a Justice of the Court of Appeal and promoted the following year as a Justice of the Supreme Court, a position he held till 1996”. “His Lordship Mr Amua-Sekyi moved on to serve as a Supreme Court Judge in the Gambia”.

He was appointed as a High Court Judge by Gen. I.K. Acheampong’s SMC11 in 1977, a military regime which had overthrown Dr. Busia’s civilian Government and gone ahead to sack the then Chief Justice Azu Crabbe by Judicial Service Amendment Decree 1977(SMCD 101).

In 1986 the PNDC promoted him to the Court of Appeal and in 1987 to the Supreme Court. Two rapid promotions and appointments made by the PNDC a military regime which had overthrown Dr. Limanns’ government. A regime he himself has ruled that was illegal and therefore overthrowing it was valid.

By the said ruling is his appointment as a judge of the Superior Court of Judicature, not null and void since they were all made by illegal military regimes either in 1977, 1986 and 1987?

It follows that by his own perceived legal position he is not entitled to his fat pension both from a legal and moral stand point. And being a man of principle he should announce that he is forgoing it and refund the payments on pensions already received back into the consolidated fund.

Why did he subscribe all his judicial oaths before military leaders knowing they were all illegal governments? i.e. SMC11 and PNDC.

Even in the Gambia where he went to serve it was a coupist military government. Capt. Yahyha Jammeh, had overthrown the civilian regime and had not even then turned himself into the civilian President he is now, but he went there also to serve.

On the proceedings and the composition of the NRC his views on the lay participation of the tribunal system is also relevant he said:

‘What makes the tribunal system more dangerous is the fact that panel members, apart from the Chairman, are laymen in law, and therefore ‘only give their consent, whether a particular judgement by the panel is fair or not.’

Of the nine (9) member composition only one academic lawyer plus the Chairman are lawyers. Does the NRC become more dangerous in the fact that the Commission members, apart from the Chairman and one other, are laymen in law, and therefore ‘only give their consent, whether a particular finding or ruling or proceedings by the panel is fair or not’?

Mr Justice Amua Sekyi should answer this and explain how to convince Ghanaians he is not going to dictate and take decisions alone and ignore the lay members of the Commission bearing in mind his own public pronounced view about taking decisions and working with non lawyers. From the evidence unfolding Justice Amua Sekyi was a victim of the PNDC era, (so they say) and that it was this that made him to resign and leave for the Gambia. There is no need to speculate but there are some few facts worth noting. 1. That he was haunted by Rawlings, the problems started when it was alleged that in a trial of a case involving his father he approached the trial judge to ascertain some information from the said judge. 2. The other party petitioned Rawlings then Head of State. 3. That Rawlings and his advisers took that as an attempt to influence the said Judge and referred the matter to the then Chief Justice in line with Art. 146(3), of the1992 Constitution. On the basis of unfriendly winds blowing in his direction, Justice Amua Sekyi then resigned. 4. That his late father was arrested in connection with documents pertaining to that same land case and put before a Public Tribunal and tried for Forgery and Uttering a forged document. A trial he perceived as harassment. These facts also raise ethical problems. His father having been tried by a tribunal, he and his wife alleged to be a victim of PNDC harassment. Could he in all honesty be ‘level headed’ when tribunal issues come up?. So far I am afraid the signs are not encouraging. With his own encounters and that of his family with the PNDC is he not a product of ‘a fruit of a poisoned tree’? Justice from the NRC to the tribunal system is elusive. He needs to justify the speech he gave at the Speakers Breakfast forum. In this case lawyers say the yardstick in assessing issues of bias and fairness is ‘justice must not only be done but should be seen to be done’ The issue of Intellectual dishonesty and our inability to call a spade a spade in order to please the powers that be is a chronic Ghanaian disease. The donor community has put so much in the NRC but so far the operators are doing a disservice to a noble cause as reconciliation is hijacked by exiles and those with hatred and vilification agenda and the earlier they are called to order the better.

ModernGhana Links

Join our Newsletter