Is the Afoko Trial a Threat to the Independence of Ghana’s Judiciary?

By Kofi Ata, Cambridge, UK Tuesday July 16, 2019
The barbaric murder of Mr Adams Mahama, the then Upper East Chairman of the NPP on May 20, 2015 is still fresh in the minds of all decent people of Ghana and the systemic inability of the state to bring a successful prosecution of those who committed that satanic act is not only failure to seek justice for the deceased and his family but also a further punishment for the family. However, this article is not about the murder but the recent development in the trial of one of the alleged murderers, Mr Gregory Afoko, which raises fundamental questions on the administration of justice and the independence of the judiciary in Ghana. Let me also point out that the article is not a defence of Gregory Afoko, far from it. That is a matter for him and his Attorneys in a court of competent jurisdiction.

I started following this case in December 2018 when in a surprise move, the Attorney General’s Department or the state prosecutor filed for “nolle prosequi” to discontinue with the prosecution just because one of the suspected murderers, Mr Asabke Alangdi had been rearrested in Cote D’Ivoire. The nolle prosequi decision did not make prosecutorial or judicial sense because the trial was at an advance stage. If the prosecutor needed more time to interview the arrested suspect that may yield new evidence to assist with the prosecution of Afoko, then, the right approach was to ask for an adjourned to interrogate Asabke Alangdi. The nolle prosequi was a red herring and raised concerns for me.

My concern was the abuse of nolle prosequi, a right reserved for prosecutors but rarelly used unless there are good reasons for it such as, not being in the public interest to continue with the prosecution. It is not to be used just to stop a trial only to restart the same trial afresh either in the same court or at another court. That is abuse of prosecutorial powers and judicial process. Judges would not allow such abuse or manipulation and so once nolle prosequi is filed and granted, the case is dead. This is because, prosecutors can apply to the court to amend charges provided there are good reasons for the application, That is, new information that was not available or its existence could not reasonably have been known until the time of the application has now become available and known.

Then the case had another twist in March 2019. An Accra High Court granted the accused, Afoko bail on March 14, 2019. The bail sum was ¢500,000 with two sureties, one of which must be justified. The court presided over by Mr Justice George Buadi, also ordered that Afoko reports himself to the Criminal Investigations Department of Ghana Police every two weeks.

Strangely, and in total disregard to the court decision, the state refused to release the accused despite the bail conditions being met by the accused. The Attorney General bizarrely went back to the High Court to have the decision reversed but failed before filing an appeal at the Appeal Court. Bizarrely, because if the Attorney General did not agree to Justice George Buadi’s decision, the appropriate action was to go to the Appeal Court first and not back to the Hight Court to try and get the original decision reversed. This is because the High Court cannot review and reversed its decisions unless directed by a superior court.

Last Saturday, Newsfile host and Attorney, Mr Samson Lardy Anyenin in his Take entitled, “A Heart of Love, Apply even Criminal Law”, mentioned the Afoko case as follows: “Now, there a rarely heard of the news that even the executive is acting lawlessly and with such impunity that a man granted bail by a court, after an inordinately long period in detention, Afoko, is still in BNI cells. The state must also conduct itself in a way that encourages general respect for law and order, this will engender law-abiding conduct to promote a happy and peaceful society. I sent a comment asking why the Ghana Bar Association has kept silent over the abuse of judicial process, total disrespect to the judiciary that amounted to contempt of court as well as bringing the court into disrepute by the Attorney General.

Little did we know that the Attorney General had more to her sleeves. Yesterday, July 15, 2019, I was shocked to read that another High Court judge, Justice Merley Afua Wood has rescinded the bail granted to Gregory Afoko on the 14th of March 2019 by Justice George Buadi after hearing an oral application by the state. I asked myself, why is the Attorney General not only abusing her powers but threatening the administration of justice in Ghana to the point of infringing on the independence of the judiciary with impunity?

This sort of judicial or prosecutorial gerrymandering should concern all Ghanaians with conscience because it’s dangerous to rule of law, administration of justice, the independence of the judiciary and constitutional democracy if a case goes against the Attorney General and she uses her powers to shop around until she gets a judge ready to do her bidding and finally gets the original decision reversed not by a superior court but a different High Court judge, then no one is safe in Ghana.

Another worrying aspect of this case is the fact that the same Attorney General has an appeal pending at the Appeal Court, so why go back to the High Court? Another question is, when did one High Court become an appellate court over another High Court in Ghana? This can happen in Ghana because Justice Merley Afua Wood failed in her duty as a judge. She must and ought to have known that she did not have jurisdiction to review and reverse the decision of Justice George Buadi without authority from a superior court. That jurisdiction rested only with superior courts (Appeal and Supreme Courts). Her action is what is described in law as “per incuriam”, that is, through lack of care and should be reversed.

In fact, in my view, Justice Merley Afua Wood is not fit to be a High Court Justice because her action threatens the independence of the judiciary. She couldn’t possibly claim that she was unaware of an appeal pending at the Appeal Court, neither is she unaware that she had no judicial powers reverse an earlier decision of another High Court Judge.

The silence of Ghana Bar Association over the above abuses is deafening because GBA is supposed to be an “amicus curiae” to the judiciary as well as defender of injustice and wrongdoing by the Executive arm of government. What about religious leaders, including the Catholic Bishops Conference, the Peace Council, CHRAJ and human right lawyers in Ghana?

It may be Afoko and not you today but it could be you or your relative tomorrow. I end with what Martin Luther King said, ”the ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy”.

Kofi Ata, Cambridge, UK