THE JOURNALIST AND THE LAW by CAMERON DUODU
In his “rejoinder” to my article in The Ghanaian Times of 13 October 2015, deploring how some lawyers are trying to confuse the public on the judges’ corruption issue, Lawyer Nkrabea Effah Dartey wrote [The Ghanaian Times, 19 October 2015]:
QUOTE: Cameron is not a lawyer and so I will not go hard on him for pretending that the police can carry out any investigation they want, with or without the consent of the Attorney-General.
He then goes on to claim that QUOTE: “The law is that all criminal prosecution is done for and on behalf of the Attorney-General, who can choose to enter NOLLE PROSEQUI in every criminal case. UNQUOTE
I am afraid the “learned” lawyer erred in seeking to dismiss in such a facile manner, the argument I made in my article that the police have a sacred duty to investigate all crimes that come to their notice, and that not even the Attorney-General can prevent them from carrying out that duty.
The “learned” lawyer’s error lies in the fact that he referred, in the quotation I have just made, to ”PROSECUTION” of cases, whereas I was talking about the “INVESTIGATION” of cases.
To use “prosecute” and “investigate” as synonyms [words of the same meaning] as he did is, to be immensely charitable in how one looks at it, a sleight of hand brandished to try and win an argument. For I cannot believe that a “learned” lawyer exists who does not know the difference between “prosecute” and “investigate.”
For the avoidance of doubt: the police first investigate a case if the alleged offence falls under the Criminal Code, and only send a docket on the case, with their findings, and recommended charges, to the Attorney-General’s Department, after they have completed their investigations. It is at that stage that the Attorney-General’s Department, through the Director of Public Prosecutions, may advise that the case is strong enough to go to court with, or too weak to be taken to court because it would be thrown out by the judge.
The “learned lawyer” errs further by bringing into the argument, the concept of NOLLE PROSEQUI. In the context of an “investigation”, NOLLE PROSEQUI is quite irrelevant.
The Criminal Procedure Act (Act 130) provides that QUOTE:
“Control of Attorney-General over Criminal Proceedings
Section 54—Nolle Prosequi.
“In any criminal case, and at any stage thereof before verdict or judgment, and in the case of preliminary proceedings before the District Court, whether the accused has or has not been committed for trial, the Attorney-General may enter a nolle prosequi, either by stating in Court or by informing the Court in writing that the State intends that the Proceedings should not continue. … Thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered;…. if he has been committed to prison, shall be released, or if on bail, his recognizances shall be discharged.
“But the discharge of the accused shall not operate as a bar to any subsequent proceedings against him on account of the same facts. If the accused is not before the Court when the nolle prosequi is entered, the registrar or clerk of the Court shall forthwith cause notice in writing of the entry of the nolle prosequi to be given to the keeper of the prison in which the accused may be detained and also if the accused has been committed for trial, to the District Court by which he was so committed. The District Court shall forthwith cause a similar notice in writing to be given to any witness bound over to prosecute and to their sureties, if any, and also to the accused and his sureties in case he has been admitted to bail. UNQUOTE
So there! As to the long narration engaged in by our “learned” lawyer, concerning his interactions with the police, they are neither here nor there. We haven’t heard from the police about what took place – which is a shame, as the public is extraordinarily interested in the issue of the judges’ corruption.
Indeed, the police can easily misunderstand their own powers, unless they obtain clear legal advice on what they can or cannot do in such a complex case. I wish to reinforce the instructions presumably given to them by the Attorney-General, that inasmuch as the receipt of a bribe by a public officer, such as a judge, constitutes a criminal offence under the Criminal Code, they can investigate such a case to the full.
Actually, I find it ironical — and somewhat droll — that Lawyer Effah Dartey should mention the fact that I am “not a lawyer”, in his rejoinder. By that, I suppose he thinks I should be precluded from any discussion of legal matters. That is ironical because it shows how short human memory is! For in February 1981, I, not being a lawyer, found out – as a journalist – that Effah Dartey (then a lieutenant in the Ghana Army) and some other soldiers were being tried in secret, on an unpublished charge, by a court the names of whose panel members had not been stated, and at a secret location. I regarded this as unconstitutional and reported my views to the world, via the BBC. Those were the days when the Military Intelligence arm of the Ghana Armed Forces acted as if it was a government on its own, and operated under its own guidelines. It just picked up the lieutenant and some 47 other military personnel, and brought them before a secret court martial, on charges that tuned out to be mutiny and misconduct.
I don’t know whether my report on the case caused the authorities to think twice about what they were doing, but all 48 military personnel were found not guilty on one of the charges. The lieutenant, on the other hand, was convicted on a second charge, but was later pardoned, recalled and promoted, after a fresh consideration of the matter.
Now, what I do know is that my report on the case embarrassed the Government of Ghana so much that it sent Special Branch policemen to come and pick me up! They took me to their headquarters. I was led to the office of the Director of the Special Branch himself.
He told me that the Government did not like the report I had sent abroad about the secret trial.
And I told him that I did not like the fact that my Government, which had just taken over from a military regime, was operating as if the military were still in power. Courts martial were subject to constitutional provisions, I said. They could not be held in secret. The names of those charged before it could not be kept secret. Nor could the charges against them; nor the names of the military officers who constituted the panel trying them. Nor the location of a court martial. The Government had thus been acting illegally! (I added).
The Director of the Special Branch looked at me.
And I looked at the Director of the Special Branch.
I could almost hear him saying to himself, “We can’t fool with this guy!”
If he had done so, he would have been right. For I had spent a year in the Constituent Assembly, as the elected representative of the Ghana Journalists Association, taking an active part in the debates on the rights of Ghanaian citizens, and other matters affecting our future. The Government of Dr Hilla Limann had only taken power in September 1979 from the Armed Forces Revolutionary Council, under the Constitution that we had taken a great deal of trouble to make as democratic as possible. And within five months, it was carrying out secret trials in Ghana? Not under my watch – as a journalist with access to the international media.
I grant Lawyer Effah Dartey all the rights he has of an advocate who is fighting – under instruction – to exonerate his client(s) from a charge as serious as receiving a bribe while a public officer. But I also wish he would grant me my right, as a concerned citizen and journalist, to state my views on how reprehensible it is that we should have judges who take money to skew justice in the direction of those who give them money.
Just imagine that the panel members on the court martial that tried Effah Dartey in 1981 had taken money from the Military Intelligence department (it had plenty of money!) and had condemned Effah Dartey – to be shot to death by firing squad!