The weaponization of the criminal defence process in the administration of criminal justice for political electioneering purposes under the 1992 Constitution by the NDC Legal Affairs Directorate's broad press statement dated 6 July 2023 undermines the letter and spirit of the Constitution and the fair and impartial administration of justice. By conflating the case of James Gyakye Quayson with the Dr. Stephen Opuni and others case, the Cassiel Ato Forson case, “the Ahmed Suale case, Major Mahama case, J. B. Danquah case, Menzgold case, etc?” the NDC, as a public institution, is also clearly attacking the exercise of the prosecutorial authority of the Attorney-General under the Constitution in pending criminal cases in court without just cause. Two wrongs do not make a right!
It is one thing to urge or appeal to the executive branch and the Attorney-General to exercise a prosecutorial discretion to enter a nolle prosequi in a pending criminal matter and it is quite another thing to attack the conduct of criminal cases already pending in the courts.
UNIQUENESS OF THE QUAYSON CASE
The James Gyakye Quayson case is unique because after the Supreme Court decided on the eligibility of the former Member of Parliament (MP) for registration to contest for the 2020 parliamentary election the matter was remitted by the Constitution to the sovereign people of Assin North to determine who should be their Member of Parliament. Mr. Quayson who was then eligible to contest in accordance with the determination of the Supreme Court presented himself on the ticket of the NDC again for the sovereign people of Assin North to determine whether he was a fit and proper person to represent them in Parliament despite being charged by the Attorney-General for trial before a court. The electorate overwhelmingly voted him to be their Member of Parliament.
In the representative democratic contest for the Assin North Constituency MP seat on 27 June 2023 the repository of the executive authority of the Republic, President Nana Akufo-Addo, personally made the potential imprisonment of James Gyakye Quayson by the court in the pending criminal action, a contested representative democratic issue for consideration by the sovereign people of Assin North. Assin North roundly rejected the President's threats and those of his Government of which the Attorney-General, a known protégé of the President, is the principal legal advisor.
Article 1 of the 1992 Constitution locates sovereignty in the people and once they spoke the only prudent thing for any Government that respects the letter and spirit of the Constitution embodying the sovereign will and the representative democratic process was to listen to the people and exercise its nolle prosequi discretion to abate the proceedings. The underlying reason is not that there is no good case to prosecute. The simple reason is that doing so may make the accused a martyr, and also bring the administration of justice into the realm of electoral politics.
And I dare say that, despite the fact that the Attorney-General urged the court in the James Gyakye Quayson case to continue with a day to day trial of the case before the Assin North elections on 27 June 2023, which was opposed by counsel for the accused, the decision and orders for an expedited trial became that of the Court and not the Attorney-General. To insist otherwise will constitute an insinuation that the High Court judge was unduly and improperly influenced in her decision by the Attorney-General.
An insinuation of such impropriety on the part of the court will be tantamount to bringing the reputation of the court into disrepute unless there is cogent proof of such undue and improper interference. Nobody has been able to adduce such evidence, which is why the lawyers for the accused are contesting the decision and orders through the legitimate processes of lawfare and not partisan politics.
The notice served on the public by the Minority Leader, Dr. Cassiel Ato Forson, on behalf of the Minority in Parliament, on 4 July 2023, of their intention to solidarize with their colleague in his court appearances and urging “the government to listen to the good people of Assin North and do the right thing” is defensible under the Constitution. The notice of the minority in parliament and the actions arising therefrom are inextricably interwoven with the democratic representative processes to which the NPP and the NDC submitted themselves at the Assin North Constituency election on 27 June 2023. The NPP woefully lost that contest and should not be allowed to wage further political conflict through the side door in a court of law when the discretion of the nolle prosequi process is available to the Government to do the most honourable and decent thing in the circumstances.
The narrowly worded press release issued on 5 June 2023 by the Minority Chief Whip which discreetly confined itself to the Quayson case is defensible as arising out of the mandated representative democratic system under the Constitution. Consequently, the original intention to boycott the sessions of parliament to accompany James Gyakye Quayson to court is defensible under the Constitution. But its extension by the minority in parliament to cover the case of the minority leader himself who has opened his defence in the case is obnoxious and self-serving should he condone it. His lawyers are there to do whatever lawfare there is to do for him. Subpoenaing the Ministry's float file for the period may be a better vindication.
NDC LEGAL AFFAIRS DIRECTORATE & THE OTHER CASES
The Dr. Stephen Opuni and others case, the Cassiel Ato Forson case, “the Ahmed Suale case, Major Mahama case, J. B. Danquah case, Menzgold case, etc” have nothing to do with the democratic representative process in which the electorate have expressed a sovereign will after the submission of criminal charges against the accused to the courts. The accused in those cases are being prosecuted on suspicion of committing straight forward crimes against the Republic of Ghana. The trials have been on-going and at various stages where the accused have opened their defences after submissions of no case to answer made on their behalf by their lawyers were overruled by the trial courts. The proper method of dealing with any dissatisfaction with the processes of the court in those cases is through the stipulated procedures provided for under the rules governing such trials in the courts.
When the Attorney General submits a criminal charge to the court and a plea taken for trial, he is no longer in control of the proceedings. As an officer of the court himself, he has to abide by the decisions and directives of the court. The Attorney-General cannot, therefore, be blamed for delays in the trial of cases in the courts. The constitutional and democratic adversarial system of justice of this country apportions to the court responsibility for how the case is conducted to conclusion.
Consequently, the broad and disparaging press statement issued on 6 June 2023 by the Legal Affairs Directorate of the NDC, a public office, which indicted by comparison the exercise of the powers of the Attorney-General under Article 88 of the Constitution in prosecuting suspects in a number of pending criminal cases, offends the letter and the spirit of the Constitution. Three sampled paragraphs, for purposes of illustration, in that statement state that:
“So far, every reasonable person out there sees the above three cases [James Gyakye Quayson, Dr. Stephen Opuni and others, and Cassiel Ato Forson] as persecution instead of prosecution intended to score political points. The AG may want to use whatever legal gymnastics to try to make it look as if these prosecutions are so legally, factually, and sufficiently evidence-based but to the ordinary observer who has followed all that has gone on, knows, this is no prosecution at all but persecution. So, the AG, Godfred Yeboah Dame, can try to "spin" the law, even on appeal, to get favourable decisions but every reasonable observer can read between the lines.”
“One would have thought that a case like Menzgold would have been long concluded so that all the many Ghanaians who look up to him as the AG of Ghana and who are the suffering customers of Menzgold, would have taken steps to ensure a speedy trial of any crime allegedly committed by Nana Appiah Mensah so that his suffering customers would receive justice because they must also be treated equally without discrimination in the delay of their case.
“The question is, is Hon Gyakye Quayson equal before the law? Does he deserve justice? Does he deserve a fair trial? Which principles of law apply to Opuni case, Gyakye Quayson case, and Cassiel Ato Forson case that can't apply to the Ahmed Suale case, Major Mahama case, J. B. Danquah case, Menzgold case, etc?”
One can conclude, based on the foregoing examples, that the press statement of the Legal Affairs Directorate of the NDC clearly descended into cheap and dangerous politicking to weaponize the constitutional democratic process by a constitutionally established political
party as a public institution to undermine the Office of the Attorney-General under Article 88 of the Constitution. The statement also weaponizes the judicial process for the election cycle, and further interferes in the administration of justice by the courts.
The position of the Legal Affairs Directorate of the NDC seems to be reflected in the attitude of some members of the minority in parliament and in the Constitutional, and Parliament Affairs Committee, particularly, who have made it their business to usurp the functions of defence lawyers in the on-going criminal trials of their colleagues by discussing in the media, the substance of the defence as to whether the courts can find the accused guilty of the charges. This constitutes an abuse of the court process and brings the administration of justice into disrepute. Impunity is impunity whether it is by the executive branch or members of the legislative branch or public officers of political parties under the colour of their offices to undermine the judicial branch of government.
The Attorney-General's press release dated 4 July 2023 was ingenuously and deliberately crafted to contain legal minefields as part of lawfare to entrap the negligent and reckless citizen into making statements contumacious of the administration of justice in pending criminal cases. The Legal Affairs Directorate of the NDC fell into this trap with its press statement in response to the Attorney-General's press release.
NDC SQUANDERING THE ABILITY TO FIGHT CRIME AS A GOVERNMENT
The NDC appears to have lost the original strategic and tactical reasoning prowess as a responsible political party that guided each step of its processes and actions from the initial stages of its foundation by former President Rawlings. The objective was to ensure that the party served as a beacon of what is decent and honourable in political actions and discourse under the 1992 Constitution. The NDC would in those days have been advised by its legal,
security, and intelligence experts that once it hopes to form the government in future it would be shooting itself in the foot to weaponize and politicize the Office of the Attorney General while in opposition in an election cycle because it will then be unable to exercise the same prosecutorial powers fairly and impartially when it becomes the government in power. Will the NDC expect the NPP in opposition not to emulate the current actions of weaponizing politics in defence of party members suspected of crime which the Legal Affairs Directorate of the NDC is espousing?
Mr. John Dramani Mahama, the flagbearer of the NDC in the upcoming 2024 presidential election at a lecture in Nigeria after stating that “corruption can be described as an instrument of murder because its effect can lead to loss of citizens lives due to deprivation of critical public infrastructure and services…” made very bold (born again) assertions on the ills of corruption, how it should be tackled, and gave the indication that he intends to fight crime should he win the 2024 presidential election.
After reading the Legal Affairs Directorate of the NDC's press statement, one wondered how John Mahama could be serious about what he lectured his Nigerian audience about, when the legal team of his political party is already undermining the Office of the Attorney-General, and the judiciary which he will need should he indeed intend to fight crime if he ever becomes the President of Ghana again. The NDC in opposition cannot undermine the Office of the Attorney-General and the administration of justice and expect to be able to prosecute the breaches of the Constitution and the criminal law that continues to surface each day during the tenure of this NPP Government under President Akufo-Addo.
The NPP and the NDC have created the impression since 2001 to date that they have become mirror images of one another through an incremental process of a common doctrine of equalization even in impunity and abuse of power in and out of Government. Nonetheless, the electorate have to go to the polls and to elect one of them to govern under the Constitution as the lesser of two evils for the time being. As the flagbearers endeavour to woo the electorate, it does a responsible government and a responsible opposition, no good to try to destroy the image of the judiciary which is the least dangerous branch of government in the eyes of ordinary members of the public. The surest way to the abrogation of the 1992 Constitution is to undermine the judicial branch and drag it into partisan politics as the NPP and the NDC appear bent on doing just for electoral gains.
The foregoing discourse has shown the danger posed to the 1992 Constitution by the unrestrained weaponization and politicization of the Office of the Attorney-General and the judicial branch for cheap electoral purposes in an election cycle by the NPP and the NDC. Africa has so many examples of the resultant chaos that Ghana can learn from and which is why patriotic citizens must speak up against the creeping canker of the politicization of the Office of the Attorney-General and judiciary branch of government by the NPP and the NDC.
I have raised my finger. Join me by raising your finger as a patriotic citizen so that we can together defend the 1992 Constitution against the political hawks from the NPP and the NDC. Let us put Ghana First by defending our Constitution. Non Desistas Non Exieris: Never Give Up Never Surrender. Salutations to all patriotic citizens.
Martin A. B. K. Amidu 8 July 2023