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12.01.2020 Feature Article

Which School of Thought (High Court or Appeal Court) is Right in this Case Supported by an Analogy?

Which School of Thought (High Court or Appeal Court) is Right in this Case Supported by an Analogy?
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I had for a while been deciding to publish an article to query the delivery of justice by, if not the integrity of, some of our Ghanaian court judges. As I normally love to use analogies to home in the relevance, or convey the gist, of my message, to the public, so shall it be today.

God being so kind to me, bestowing on me intelligence and wisdom to serve not only Him but humanity and my native and adopted countries, He made it possible for me to receive an intuitional analogical message early this morning while I was in the bathroom brushing my teeth. He knew I was in search of a convincing analogy to convey a message of public interest to waging a successful fight against the infestation of judicial and institutional corruption in Ghana.

Before proceeding any further, I shall pause to request whoever comes across this write-up to give it a wider publicity by forwarding it to their social media contacts, friends and families. This is because I am seeking their judgmental views on the issue this article is raising, and seeking honest solution to.

The analogy goes thus, there is a country where their constitution states amid its many "Articles, Sections and Clauses" that:

a) When a man has sexual intercourse with a woman and in the course of the act, or after the act, the woman dies, the man will neither be held culpable of the woman's death nor be punished but is exonerated from blame

b) It is a crime punishable by prosecution, conviction and/or imprisonment to rape a woman

c) It is a crime to have sexual intercourse with a minor, thus a child below 18 years old

The constitution is conspicuously clear on the laws as are stated above.

To better understand the analogy, let us define a few words as are found in the laws.

1) SEXUAL INTERCOURSE, also called coitus, or copulation, is defined as "reproductive act in which the male reproductive organ (in humans and other higher animals) enters the female reproductive tract. If the reproductive act is complete, sperm cells are passed from the male body into the female"

2) CRIME is " an action or an instance of negligence that is deemed injurious to the public welfare or morals or to the interests of the state and that is legally prohibited"

3) MINOR is "a person under the legal age of full responsibility"

4) RAPE is " unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the victim"

In this analogy, a man is raping a woman or a female minor and the woman ends up dying. Can the man be arrested and prosecuted for committing crime? One school of thought says the man must not be arrested and prosecuted but be held blameless since the woman's death was a resultant of sexual intercourse. Despite the other laws, this school of thought is blindly holding on to the first "Article" in the constitution on sexual intercourse as in "a" above.

However, there is the second school of thought that says the man must be arrested and prosecuted because the death of the woman or minor came about as a result of rape, although, having sexual intercourse. And, raping a woman or having sexual encounter with a minor is a crime as is explicitly stated in other Sections of the constitution.

" A school of thought, or intellectual tradition, is the perspective of a group of people who share common characteristics of opinion or outlook of a philosophy, discipline, belief, social movement, economics, cultural movement, or art movement"

Public readers, please let us see your views. If you were a judge and this case was brought to your court, how would you judge it?

Going back to the true story of which this analogy came to me through intuition as said above, the Ghana constitution stipulates that any case bordering on chieftaincy, as are classified as "cause or matter affecting chieftaincy" cannot be trialled in any court right from District Court through to the Appeal Court. They can only be arbitrated or trialled by a Judicial Committee of the House of Chiefs, or the Supreme Court on appeal.

The "cause or matter affecting chieftaincy" as are held in the Ghana Chieftaincy Act are:

"In explaining "a cause or matter affecting chieftaincy" the interpretation sections of both Act 459 and Act 759 provide at Sections 117 (1) and 76 respectively, as follows;

"Cause or matter affecting chieftaincy" means a cause, matter, question or dispute relating to any of the following:

1. The nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief,

2. The deposition or abdication of a chief

3. The right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief

4. The recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and

5. The Constitutional relations under customary law between chiefs"

If a chieftaincy dispute results in a person killing another, can a District, a Magistrate or a High Court judge trial the case? Note, the murder was a culmination of chieftaincy dispute.

Please public readers, look closely at what constitutes "cause or matter affecting chieftaincy". Does assassination, theft, or any act of fraud constitute a cause or matter affecting chieftaincy that a High Court is deprived of authority to hearing and ruling on? Does it mean that any illegalities resulting from chieftaincy issue cannot be trialled in any court apart from the Judicial Committees of the Houses of Chiefs and the Supreme Court? Is it what is stated in the complete definition of "cause or matter affecting chieftaincy" as are reproduced above?

The first school of thought, as is in the analogy above, is saying that yes, any acts, irrespective of their nature, as are resulting from chieftaincy cannot be trialled in any lower court other than the Judicial Committees of the Houses of Chiefs or on appeal at the Supreme Court. However, the other school of thought holds the view that the "cause or matter affecting chieftaincy" are clearly etched in stone and do not include acts of fraud, assassinations, thefts, etc. Therefore, any illegalities arising from chieftaincy issues or disputes other than the comprehensively spelt out "cause or matter affecting chieftaincy" as is in the High Court rules and Chieftaincy Act 759 can be heard and ruled on by a High Court judge similarly as are in any other crime not relating to chieftaincy issues.

Which school of thought do you think is right here, fellow Ghanaians and public readers?

A purported paramount chief has committed the mother of all fraud right from his selection, enthronement and gazetting in the National House of Chiefs as the paramount chief of his division within a traditional kingdom. An honest High Court judge worth his salt, a professional guided by the ethics of his profession and the oath he swore to be fair and firm in the dispensation of his duties, declaring his judgments based on the abundance of available credible, permissible, and acceptable facts and evidence, but not based on any inducements of bribe or pleas, has sided with the first school of thought. He heard and ruled on a fraud case come about as a result of chieftaincy dispute.

An Appeal Court has ruled against the High Court judge saying he had no authority whatsoever to listen to the case but to have referred it to the Judicial Committee of a Regional House of Chiefs since it falls under "cause and matter affecting chieftaincy". Which of the courts is right in their judgment? Is it the High Court or the Appeal Court?

Again, can a footballer who doubles as a referee in a game that his team in which he is an active player on the field at the moment, be fair to the side his team is playing against? Subtly put, how honest is a player in a game of football be to the rival team if he is himself the umpire? An umpire is "a person selected to rule on the plays in a game" or "one selected to settle disputes about the application of settled rules or usages"

Are the Appeal Court judges being sensible to refer a case to someone who is himself implicated in a crime brought before the court for fair judgment to decide the case? Are they intelligent at all, or it is the usual "Ghana dee saa" nonsense at its highest display?

I rest my case. I leave it to the public to express their sensible views about it. However, I invite the public to google to read about Sections 239 to 247 of the Ghana Criminal Code 1960 (Act 29). Is fraud a crime in Ghana or not? A crime is a crime whether it has chieftaincy coloration or not!

Rockson Adofo

Sunday, 12 January 2020

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