Sep 19


Because of the pervasive nature of the power that our Constitution provides to judges, it is extremely important that we seize upon the opportunity provided by the Anas tapes, to try and eradicate corruption from their ranks.

I say “try and eradicate”, because, of course, no-one can ever eradicate corruption totally from any institution. Corruption does not, in fact, reside solely in the pocketing of cash – and yams and goats! There are, also, more subtle and sophisticated ways in which it can operate; through methods such as secret handshakes and signals taught to members of exclusive social organisations to whose undisclosed membership judges may subscribe. Even apparently transparent social associations such as “Old Boys Networks”, composed of former students of certain schools, as well as members of certain churches that are commercial enterprises more than religious institutions, know how to exert a malign influence on corruptible judges..

The existence of such clandestine influences can often demoralise those who encounter it in our courts. Imagine yourself a lawyer who has spent endless hours toiling over a client’s case; absorbing all the numerous abstruse points made by the authorities on the issues being contested; consulting more experienced lawyers widely; and from all that, assuring your client that success is at hand. Then you go to court – only to find that the judge has summarily dismissed all your arguments on grounds that are either illiterate or illogical. “I find that….” he says. With finality. Because, unknown to you – he has been secretly “seen” by the other side.

When this happens, the usual thing to do is to throw in the towel, for appeals are expensive and can be protracted. Next, frustration and anger set in – sometimes to a soul-destroying degree. Client and lawyer may even fall out, for the client always blames his lawyer, unless he is intelligent enough to perceive that it is not only brilliant arguments that win court cases in a country ridden with corruption.

Worse, anger may inflame the client to such a degree that he may try to reap vengeance on the judge, the judicial system, or society as a whole. Some clients do indeed go mad! (In my childhood, there was a man in our village who used to walk about the streets, muttering to himself that he would “deal with them – you wait and see!” He had been dispossessed of huge tracts of ancestral land through “litigation”).

Alas, the history of Ghana shows that some people occasionally do obtain the power to “deal with” judges — in dastardly and tragic circumstances. Therefore it is in the interest of Ghanaian society as a whole that this matter be settled in a manner that reassures everyone that the right thing has really been done.

Some people are arguing that the Anas tapes should not be shown to the public because they will tarnish the image of all judges, including innocent ones. This is naïve: I am sure a shrewd operator like Anas has uploaded them already on Youtube and Aljazeera and will press the button as soon as the Ghanaian judicial system tries, in its own self-interest, to obstruct him.

One MP has been quoted as saying that we should be “cautious” in our approach to the judges’ corruption issue because it is tarnishing the image of Ghana as a country. But that is as logical as saying that just because the arrest and conviction of cocaine smugglers tarnishes the image of Ghana, we should leave the cocaine smugglers alone to carry on their nefarious activities.

One journalist has suggested that because many judges are honourable individuals, the tapes should not be shown to the public to prejudice the public mind against all judges, whether innocent or corrupt. But again, this ignores the fact that judges are used to dealing with individuals and not groups, and should therefore be the first to appreciate that the material on the tapes apply to individual judges who have faces and names and not to a nameless abstraction known as “judges”. Such special pleading , I am afraid, exposes its advocates to be uninterested in the public weal, who seek to perpetuate the corruption Anas has unearthed, and for reasons best known to themselves.

These disgraceful mutterings on behalf of the corrupt status quo may represent the views of quite a few members of the Ghanaian Establishment, and demonstrate that that if care is not taken, the exposures contained in the tapes risks being made to end up in the way so many abuses go in Ghana, namely that people will throw up their arms and say: “This problem is too big to be tackled by human beings, so let us give it to God!” What happened to the money corruptly squandered at the World Cup football tournament in Brazil? Ask me another. What happened to the noise made about GYEEDA and SADA? Ask the piles of rubbish in our smelly streets. And the guinea fowls that are decorating the dinner tables of coup-makers in Burkina Faso.

I do not doubt that we have the brain-power, and the determination, as a nation, to deal with the issue of corruption. It is true that the law is a very complex thing, even when it is operating in a straight-forward manner between two litigants. It gets much worse, of course, in a case like this, where a multiplicity of actors are involved. Here is the mind-boggling dramatis personae: (1) Anas; (2) the named, suspect judges; (3) the innocent judges; (4) the court clerks and other alleged facilitators of corruption in the judiciary; (5) the Attorney-General’s Department in its capacity as the prosecuting arm of the executive; (6) the larger judiciary as the adjudicating authority in any cases brought before it with regard to the tapes; (7) the Judicial Council; (8) the executive, in its role as the potential initiator of impeachment proceedings against judges against whom allegations of corruption have been made; and (9) the legislature as the arbiter in matters of impeachment!

There is too much room for manoeuvres aimed at killing the cases with sheer quantitative obfuscation, isn’t there? Who knows how to deploy legal technicalities and procedural niceties better than judges and their counsel?

Just pause for a moment and consider the obscure side-issues that could be manipulated to kill the case: should the tapes be played to the public before they are used as evidence against the allegedly corrupt judges? What How reliability can be placed on the manner of the collection of the evidence revealed in the tapes? Very technical legal issues are being canvassed by lawyers on this.

Another side-issue is this: should the management of the premises intended for use as the venue for showing the tapes be allowed to go ahead and allow the venue to be so used? More technical arguments – some relating to procedure and/or “due process”. And, of course, plenty of court time to be expended o the arguments, while the bigger issue – the corruption of the judges – remains untouched.

Does the Judicial Council have authority, under the Constitution, to be interrogating the accused judges and suspending the junior ones? This provides fodder for argumentation by constitutional lawyers.

The Attorney-General’s Department, both as the Government’s legal advisers and as the prosecuting authority in its own right, will be tasked to the full to maintain an even keel over the multifarious aspects of the matter. But it should not be distracted, by the side-issues. It should expand its resources by instructing counsel from the private sector to help it go over the incriminating material provided by Anas, with a fine tooth’s comb, in order to prepare thoroughly to counter any arguments that may arise, both technical and substantive, relating to the law that applies to corruption allegations.

The Attorney-General’s Department, in effect, must be ready to withstand argumentation on the admissibility of the Anas evidence; the difference between entrapment by public authorities (such as the police) and by private citizens (such as journalists). Above all, it must resolve to countenance the possibility of having to demand that some judges “recuse” themselves, if and when cases are brought before them against “brother judges”, to whom there is evidence that they have been very “close” in the past. No-one knows better than the Department, how judges hate to be asked to recuse themselves: the intemperate outburst by the president of the panel that adjudicated over the 2013 presidential election petition case is fresh in all our minds.

If the under-staffing of the Attorney-General’s Department, which is not news to anyone, cannot be readily ameliorated, then perhaps it should seek another way to cope with this unprecedented, multi-faceted, crisis in the judiciary?

Could it perhaps cut the Gordian Knot by recommending that a Commission of Enquiry, manned by judges from outside Ghana, be set up, to look into the matters raised by the Anas tapes? We know from the Jibowu Commission of 1955 that such a Commission can help bring out, in a coherent and focused manner, the unpleasant facts thrown up by allegations of corruption. I think such a Commission could be empowered, through its Terms of Reference, to focus on all the main issues involved and give clear directions/recommendations, through its Findings, to the Attorney-General’s Department, on how to proceed. It could probably even – (and I am no expert on the Constitution!) be given power to impose and punishments it thinks fit.

Certainly, a carefully selected Commission, armed with expertly-framed Terms of Reference, would be a means of attempting to short-circuit all the injunctions and sideline technical issues with which the courts are currently being burdened, and which are intended to distract the public from the main issues at stake.

The Commission’s Terms of Reference should empower it to put every aspect of the matter into one single basket, and to make Findings, as it deems fit, on all the relevant issues. Otherwise the matters could be endlessly dragged from court to court, obstructed by technicalities, appeals, and appeals on appeals! Then, in the end, the whole corruption investigation will become an expensive, mundane, exercise in futility.

If such a Commission of Enquiry were to beset up, it would have to be given an immutable deadline: report by such and such a date; the Attorney-General will be required to act on the Findings within this specific time-frame; and so on. Ghanaians are sick of the type of situation in which a case goes on for eight months, only to be ended with a three-minute judgement. To prevent the Commission giving the excuse that its work was too onerous, it would have to be given staff and equipment to speed up its processes. It would be money well spent, for it would open the door to a future in which our courts would have no excuse to deny justice by delaying it.

Of course, it must be admitted that the Attorney-General’s Department has never faced such a challenge as the one presented by this judges’ corruption issue. But challenges can bring out the best in people and it is my fervent hope that in the interest of the healthy development of our democracy, the Attorney-General will approach the matter with a clear, focused mind, and advise her Government in clear, unambiguous terms. The way the Woyome case was handled by the Department, leading to the yeoman-type crusade on behalf of the public by Mr Martin Amidu, sank the reputation of the AG’s Department in the eyes of the public. The time has arrived for it – fortuitous though it is – for it to try and redeem itself, in the eyes of the public.



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