I find patent procedural irregularities or violations of law in the reported events of Friday, September 19, 2014 culminating in the termination of the trial in Republic vrs. Baffour Gyan.
If the media reports, largely corroborated by the defence lawyer, regarding what transpired in the Kumasi Circuit Court (KMA) are accurate or substantially so, then the complainant, the police prosecutor, the Judge and, to an extent, the lawyers may all be caught in acts inconsistent with the law.
The outcome may have occasioned a dangerous precedent in our criminal jurisprudence that may require the attention of the Inspector General of Police, the Attorney-General and Minister for Justice, the Chief Justice and perhaps the Ghana Bar Association for immediate redress.
The letter signed by Ashanti Regional Editor of the Daily Graphic, victim of the alleged assault, is headed: “Discontinuation/withdrawal of assault case – Daniel Kenu.”
This is what is reported to have been brought to the attention of the court and upon which the judge struck out the case as terminated.
Procedural irregularity No 1
It is only the AG who is permitted in law to terminate or discontinue a case using either of two modes; Withdrawal or Nolle Prosequi. This, the AG is allowed to do even without assigning reasons.
A prosecutor may lead a withdrawal “with the consent of the court or on the instructions of the Attorney-General at any time before judgment is pronounced...”
A complainant may only seek withdrawal of a complaint at the police station. It is trite learning that criminal charges are primarily brought in a court of law only by the AG or on her instructions and all prosecutions conducted in the name of the state.
This flows from Article 88(3) and (4) of the 1992 Constitution: “(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. (4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law.”
A criminal trial, therefore, is a fight mounted by the state against the accused and it is only the state that can by due process prematurely terminate the trial.
Procedural irregularity No. 2
Kenu’s letter was addressed directly to the Judge informing him “to discontinue with the case on health grounds and other related family matters.” We seek adjournments on such grounds not discontinuance. The practice is, if one chooses not to communicate information to the Court orally in open court or in chambers, he must do so by addressing the correspondence to the Registrar of the Court and not the Judge. It has to be properly filed in the Registry of the Court by paying the appropriate charges if any before it can be brought to the attention of the Judge by being placed on the case docket.
Procedural irregularity No 3
More importantly, the heading of the letter is wrong as I have already indicated. The procedure of a withdrawal being done at the instance of a Complainant is unknown in our criminal jurisprudence and if the Court elected to construe this letter as a request for settlement, then the Judge erred in striking out the case immediately. The option of out-of-court settlement is available to all parties for the promotion of reconciliation.
The law says, “A court with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of an offence not amounting to felony and not aggravated in degree, on payment of compensation or on any other terms approved by the Court before which the case is tried, and may during the pendency of the negotiations for a settlement, stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person."
So this case being non felonious and perhaps non aggravated in degree but probably a minor misdemeanour is liable to this process and if this, in substance, was what was intended and effected, the case ought to have been adjourned pending the filing of Terms of Settlement and/or the announcement of such subject to the approval of the court.
Case over? A bad signal
It is also a bad signal for prosecution to simply give up on a case because a complainant is disinterested. The attitude has the potential to embolden law-breakers like those Kenu refers to in his letter as “hooligans” to continue to perpetrate criminal wrong.
The utilitarian reformative value and deterrence that punishment for crime is primarily intended might also be lost and the larger society exposed to the dangers of crime without the hope of the protection the state assures. Yes, the case may be over and done with if Kenu is the state's principal and only witness.
But an attempt to sustain the trial is very possible, even if with little chance of success. He indicates in his letter a certain grave nature of the alleged assault leading to his hospitalisation. He gave a statement to the police leading to the charge. There may be material witnesses willing to assist the state. There is also his medical report to which the medical officer who authored it may be willing to testify to in court.
Still there may be other material evidences like photographs or video recording of the event of the alleged assault that may be useful in assisting the state to secure a guilty verdict. I should mention that prosecution could also try to make use of the Joy FM reporter who was allegedly assaulted by a group including the accused at the Ada resort the day musician Castro and friend Janet were reported drowned and missing.
The Republic, surely, won’t abandon a similar case if the accused is found to be a wealthy man driving without licence who hit and severely injures a poor man with a not-roadworthy and uninsured car. It would have failed in keeping such people and cars off our roads to spare us the needless carnage on our roads.
I suspect, though, that none or very few would want to assist a man who rejects help in a cause of justice he whipped almost an entire nation to empathize with him only to treat the cause as a personal private one, and probably an avenue to make some cash, as he is widely rumoured to have received 15,000.00 dollars compensation and another GHC 4,000.00 to cover his medical bills. This, however, sounds absurd because it could well be that if the accused was found guilty in the end he might have been required to pay a fine together with compensation which may not exceed GHC 10,000.00. One would say the rumoured amount is peanut to the Gyan brothers and worth getting one’s name completely out of the country’s criminal records.
I am reliably informed his company paid good money for very able counsel to assist the criminal trial and to consider a civil suit which could have fetched him good money if money was partly the major goal. His employers are shocked why he spent hours that morning getting prepared in the Lawyer’s chambers for court or pretentiously deceptively without the bold sincerity to give the slightest hint he had the infamous letter in his pocket.
YET MERCY BLESSES TWICE
I do not want to comment further on the propriety or otherwise of Kenu’s decision except to sympathise with his boss Ken Ashigbe who has for the better part of the year been championing a crusade against injustices against journalists. I sympathise with the GJA and all who offered Kenu such huge support and ask them to forgive him because he has duly acknowledged all they have done, and says he knows he has “disappointed my colleague journalists…, loved ones and supporters.” “Mercy makes a king look better than his crown.” William Shakespeare reminds us it is only human to err and divine to forgive, and that mercy “is a quality of God himself.” I only wish, as a consummate practitioner of Alternative Dispute Resolution, that even if he was minded to settle, it should have been properly guided and done transparently and to include such conditions/terms as a public apology, a caution and a bond that may partly serve the cause to avoid such future criminal injustice.
WAY FORWARD – So if the said parties are found to have ignored the due processes discussed above, the Inspector General of Police may be informed to exact explanations from the Police Prosecutor. The Hon. Attorney-General and Minister for Justice may be petitioned to consider re-listing the case to properly conduct the settlement or continue the trial.
Her Ladyship the Chief Justice may also want to hear the Judge’s version of events. The Ghana Bar Association may want to know why lawyers involved neglected or failed to assist the Court to follow the law. The Court is the last place citizens must lose faith and confidence in as the place of best recourse for protection against criminal acts and against all forms of injustice.
Source: Samson Lardi Ayenini/D-Graphic
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