"Desperate situations demand desperate measures,” said the Acting Director of Public Prosecutions, Gertrude Aikins, in court yesterday, to heckles of astonishment from the defence counsel of Kwabena “Tagor” Amaning and Alhaji Issah Abass, who had objected to a secret recording obtained by the investigator in the case, describing it as “unlawful.”
Ghana's second most senior prosecutor said, high standards of individual rights protection are luxuries for the advanced countries, asking the court to ignore practices and case law from elsewhere cited by the five-man defence team to support their case that the laws of Ghana, including the law covering drugs cases, frown on the alleged impropriety conducted by the police in obtaining evidence from the accused persons.
Ironically, Mrs Aikins had used similar English and European cases to earlier convince the court to allow the prosecution to tender in evidence the so-called Kofi Boakye tape, upon which the prosecution case, alleging the suspects were drug smugglers, hinges.
According to evidence before the court, a meeting at the official residence of the now suspended Assistant Commissioner of Police, Kofi Boakye, last May to find out who was behind rumours that ACP Boakye was responsible for about two tonnes of cocaine which went missing on the high sees under surveillance, was secretly recorded. The prosecution is alleging that the accused persons made confessions on the tape that they had in fact peddled drugs in the past and had also jointly planned to find the missing cocaine and share the proceeds.
Though, the source of the tape was not established, the court admitted it in evidence, on the basis that its relevance far outweighed the ill-method by which it was secured.
But, not only was the original tape"s audibility in question, the court needed to be satisfied that the voices on the tape included those of the two accused persons.
Detective Inspector Adaba had told the court Wednesday that he recorded the voices of Kwabena “Tagor” Amaning and Alhaji Issah Abass, Alhaji Moro, Kwabena Acheampong, and ACP Kofi Boakye, without their knowledge.
His excuse was that it was necessary for them not to know so that they would not disguise their voices.
He had explained that he took the decision after a voice expert in the UK, requested voice samples of the accused persons for voice-speaker verification. JP French Associates of York had been contracted by the prosecution to undertake auditory analysis of the Kofi Boakye tape.
Nana Bediatuo argued that the court has a duty to ensure the integrity of the justice system and the right to privacy and a fair trial of the individual above police expediency, especially when the police could have easily obtained the sampling recording in a proper and legal manner.
Reacting to the defence objection on the mode of obtaining the recording, Ms Aikins told the court that the police service in the country has not improved and “we still use crude methods in obtaining information.”
She said the process and method of obtaining the evidence is irrelevant, but insisted that the information should be ruled admissible by the court. She further stated that the content of the recording is not important to the case, but just to identify the voices on the previous case.
Nana Bediatuo cited a number of legal authorities, quoting one case which said, “In the present case [P. G. and J. H. v United Kingdom (20010], the police knew that the applicants had refused to provide voice samples voluntarily and sought to trick to them into speaking in an underhand procedure which was wholly unregulated, arbitrary and attended by bad faith.”
Nana Bediatuo then told the court, “It was also irrelevant that the recording was used for forensic purposes rather than to obtain information about the speaker, as it was the covert recording itself, not the use made of it, which amounted to the breach of privacy.”
The recordings secretly obtained in custody were done on November 1 and November 2, 2006.
Ms Aikins argued that narcotics are not only a threat to public safety but morals as well, and therefore individual rights cannot stand in the way of the national interest. She said no individual human rights are absolute, adding, “The investigator did what he did because there is no alternative.”
Nana Bediatuo disputed this, recalling that the investigator had called him to say his client would not speak unless his lawyer was around. Nana Bediatuo said he was willing to attend the interview but he never heard from the police again.
Making the objection, Nana Asante Bediatuo, one of Tagor's lawyers, told the court that the integrity of the recording is questionable because it was obtained in bad faith.
He said under the 1992 Constitution of Ghana, the accused persons are entitled to fair trial. He said Tagor on several occasions consistently objected to interrogation in the absence of his lawyers, and therefore the investigator recording the accused persons without their knowledge was a violation of their human rights.
He said it would have been fair enough if the investigator had been ordered or obtained permission to do the recording, adding, “The investigator made a warrant-less search.” He said the conduct of the investigator is deplorable to the law. “He could have gone in accordance with the law,” he said.
Associating himself with the submission, Osafo Buabeng, Lead Counsel for Alhaji Issah Abass, said even under sections 27 and 28 of the Narcotics and Drug Control Law that the prosecution was relying on for their case, a police officer should have an authorisation before he could record someone. He said these are mandatory provisions under the law, which cannot be overlooked.
Earlier on, Detective Adaba had told the court that in the 'ACP Kofi Boakye tape', Alhaji Abass stated that it was the limping man (Sheriff) that hired the MV Benjamin vessel to bring in the 77 parcels of cocaine, and also the canoes to cart it away.
He said the name “Mama Tess” was also mentioned on the tape, and upon investigation, found out that she owns a company on the Spintex Road called Platinum Furniture. He said attempts by him to interrogate Mama Tess proved futile as she was said to be out of the country.
Detective Adaba said further investigations indicated that the MV Benjamin vessel belongs to Dashment Company, which is owned by Kojo Dawson.
The investigator explained some of the terminologies used in the drug trade in Ghana. “They call kilogramme, keys, which means safoa in the Akan language, and cocaine is known as goods, which mean nyiama in the Akan language,” he added.
He told the court that the purpose of the terminologies is to confuse anyone that is listening to them.
The case has been adjourned to March 28, for ruling on the submission by both parties as to whether the investigator's recording should be submitted as evidence, and also for continuation.