Thank you for your article of 19th September 2004, in respect of excerpts from the NRC report. I do not doubt the authencity of your source being one of the privileged few.

NRC PROCEDURES

The so called findings of the NRC against me as an Accessory to Human Rights Abuses in the PNDC era is not surprising. Justice Amua-Sekyi?s & his NRC?s hostility and open bias against the Tribunal System and in particular George Agyekum is well documented and in the public domain. There were public displayed instances where the Commission leadingly suggested the name of George Agyekum to witnesses who were alleging abuse by tribunals but could not remember the name of the Judge they appeared before, even though from the records George Agyekum had nothing to do with the cases.

He turned the sittings of the NRC as a kind of Appellate body over the Tribunals. Unfortunately his methods were (to use his own words that he referred to the Tribunals) ?uncivilised?. His grudge because a National Public Tribunal tried and convicted his father, the late Mr. Amua-Sekyi for forgery is one of his bitterest pain and this was demonstrated in no uncertain terms, using NRC sittings as a revenge against his perceived enemy, the tribunals for dealing with his father.

He lined up witnesses upon witnesses to malign the tribunals and used all kinds of adjectives to refer to tribunals. The highest point was when he lined up 13 armed robbers to come and condemn the tribunals using lessons and reasoning on concurrent and consecutive sentencing policy.

Amua Sekyi used a well meaning process meant to reconcile the nation as an instrument of settling personal scores with his perceived enemies and/or adversaries and this country is now more divided than when he started. From where he was coming he should not have been appointed and when appointed, if he had been honest and well intentioned should not have accepted the appointment, since for all intent and purposes he had a chip on his shoulder and could not under any circumstance be neutral and independent for such an important and sensitive national exercise. This fear initially expressed by others but ignored has proven to be well founded.

The procedures adopted by the NRC were palpably flawed and left very much to be desired. They allowed in untested and unverified testimony some even fourth and fifth hand hearsay. These concerns were raised by many well meaning Ghanaians and there was an assurance that such testimony was not going to be the end of the matter and that further investigations were going to be conducted. These assurances turned out to be false.

COUP JUSTIFICATION

At the sittings of the NRC he openly agreed with a submission by one of the relatives of the Goka/Djan case in question, that the attempt to overthrow the PNDC was justified because they were resisting an oppressive regime in line with Art. 1 (3) of the abrogated 1979 Constitution.

Which states: (3) All citizens of Ghana shall have the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution should no other remedy is possible.

In any case is the social utility of the accused a factor to be taken into account when administering the criminal law? This was the same illegal PNDC which promoted him twice, rapidly within a space of two years to the Supreme Court. That as an apostle of human rights who abhors military regimes he was appointed to the High Court bench by Gen I K Acheampongs? NRC (which one former member he sits with on his Commission).after having then just disgraced the then Chief Justice Azu Crabbe by sacking him.

BREACH OF RULES OF NATURAL JUSTICE

Now there is a basic legal principle in law which the ?kangaroo? tribunals even observed in the trials he condemned. The rules of Natural Justice are used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply. The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis. These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions.

. Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:

o A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).

o A person making a decision should declare any personal interest they may have in the proceedings.

o A person who makes a decision should be unbiased and act in good faith.

o Proceedings should be conducted so they are fair to all the parties.

o Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.

o A decision-maker should not take into account irrelevant considerations.

o A decision-maker should take into account relevant considerations.

o Not only should justice be done but it should be seen to be done; in other words, legal proceedings should be made public.

? Did he invite, call or subpoena Agyekum when he decided to deal with him?

? Did he send him any statement drawing his attention to an accusation or an allegation that needed his response?

? He was acting as an Appeal Court Judge over Agyekums? judgement heard the other side. Did he find it necessary to call Agyekum or even asked him to submit a statement in his defence? Or was it because his mind was made up?

? Did Agyekum sign PNDC Law 78 that set up the tribunals?

? If not, did it occur to him to even ask the Attorney General at that time the rationale which led to a so called bad law?

? With the conviction of his father by a National Public Tribunal and his statement of a public attack against the tribunal system at the Speakers Breakfast forum and calling for it?s abolishing, using the NRC as a platform. Was he not acting as a judge in his own case when he set out to justify his publicly pronounced views on the Tribunals?

? Was he not showing open bias when he called the tribunals uncivilised, ignorant etc at NRC sittings?

During the last days of the NRC they published a long list of persons who in their mind had to answer to allegations made against them which lack of response was meant to mean an acceptance of guilt.

? Was George Agyekums? name included in that list? So what is the basis of one of his human rights abusers not called to answer?

If the NRC can violate one of the cardinal principles of the rules of Natural Justice and sentence George Agyekum in absentia, then of course he has also violated George Agyekums? human rights.

MODE OF TRIAL AT TRIBUNALS

Reading the so called evidence of how Agyekum and others were indicted by the NRC in the Independent of 21 October 2004 makes a laughing stock of the NRC and its Chairman a retired Supreme Court Judge. He quotes extensively from the Evidence Decree of 1975 especially with regard to admissibility of confession statements, a kind of legal gobbledegook to justify his unreasoning findings.

When he knows too well or ought to have known that mode of trials at Public Tribunals were regulated by Public Tribunals Law of 1984 PNDCL(78).

Sec. 13 (1) states: subject to the provisions of the of the Provisional National Defence Council (Establishment) Proclamation, 1981, and to the provisions of this Law, a Public Tribunal shall regulate its process in the interest of justice. ????

(12) Where an objection is raised to evidence which is sought to be adduced a public tribunal, on considering whether such objection is warranted, may make reference to any rule of law regarding evidence and procedure and shall reject such evidence if it is satisfied that the interest of justice so demands, but shall otherwise admit such evidence provided it is relevant.

(13)The public tribunal shall however record the objection the grounds thereof and any evidence led in support of it and shall take them into consideration in its evaluation of the entire evidence before final judgment in the case.

This is the law that was used, in fact Sec 13, is the procedure section for the tribunals and in the trials of the Gokas? taken into consideration the provisions of Sec 13, the Defence, Prosecution counsels and the Court agreed to admit such testimony provided that evidence could be called by accused and prosecution to state their sides of the case and contradict where necessary.

In any case the contents of their police statements were in line with the submission Amua Sekyi himself accepted, that the accused had the right to overthrow the PNDC Government, which in itself was a vindication of the findings of the Trial and Appellate tribunals, so then, How does the admission of confession statements agreed and found to be true become a violation of the rights of the accused?

To suggest that I have violated the rights of the accused because I applied the relevant applicable law and that I should have used the inapplicable law by conducting a voir dire because it is the NRC? and its Chairman?s preferred law is to my humble opinion at best legal dictatorship warped in human rights pedagogy and at worse legal illiteracy and a serious mischief.

That a man may be indicted for applying the relevant law because somebody somewhere did not like the law or its result, if accepted as a principle in the human rights evaluation of public office conduct behaviour is to my mind setting dangerous precedents.

Saying the tribunal did nothing on allegations of assault it was my tribunal order, as a case for Institutional reform, that in the Goka case based on my findings which is clearly stated in the judgment that the accused were assaulted and mistreated by arresting officers that I ordered that in future all interrogations at the BNI in such sensitive investigations be filmed on video and kept, if he had cared to enquire since the Goka case the BNI complied with this order and had been filming all such sensitive interrogations.

With our adversary criminal justice system with adversary procedures was he expecting Agyekum to descend into the arena of conflict by going to arrest Rawlings, Kojo Tsikata, Quantson, Peter Nanfuri and Jack Bebli to produce to my court the Commandoes who allegedly assaulted the accused persons?

As a Supreme Court Judge did he have the power to investigate and charge accused persons suo motu from his court and proceed to try them by acting as judge and prosecutor without the consent of the Attorney General? Do we run an adversary common law inclined legal system or the French inquisitorial examining system in Ghana?

VOIR DIRE

The Procedures governing the admissibility of evidence in case of a conflict which lawyers call the Voir Dire is clearly stated how it should be done by law. A voir dire is an enquiry conducted by a Judge in the absence of the jury into the admissibility of an item of evidence. It is sometimes called a trial within a trial.

A different procedure was however provided for in the tribunals? law and in any case when there is no jury trial but a trial by a single Judge or with assessors. The judge almost invariably becomes fully aware of all the evidence of the confession during the Voir Dire except that by his legal training he is expected to take out of his mind the inadmissible portions if the confession statements are rejected.

This the law framers thought Jurors couldn?t compartmentalise the two, hence the voir dire to be conducted in the absence of the jury. Tribunal trials were a Judge sitting with lay assessors as panellists and to use provisions related to jury trials as a yardstick was in itself surprising.

More so when Sec.!3 (12) and (13) of Public Tribunals Law 1984 (PNDC 78) had stated how tribunals should proceed in case of disputed confession statements. Did he read the tribunal laws before writing his famous indictment report?

To use a law that does not apply as a basis for so called indicting Agyekum is one of the most dishonest, malicious , bias, hollow and capricious acts that a judicial officer could commit. It has no legal, ethical or moral basis and is void ab initio, should be treated with the contempt that it deserves.

QUEST FOR ANSWERS

Justice Amua Sekyi should however guide us for answers to these questions:

? When he was appointed by I K Acheampong as a High Court Judge on the coming into force in 1975 of the Evidence Decree, Acheampong suspended it because to his view Ghana had not reached such a stage where the Decree should be used.

? Did he defy the suspension and applied the law because it was better than the Criminal Procedure Code and other relevant provisions in force at the time?

? He sat in the Criminal Sessions and applied the old laws. Did he violate the rights of accused by listening to Acheampong?

? Why did he not indict himself for not defying the suspended Evidence Decree by Gen. I K Acheampong?

? In 1982 the PNDC overthrew the Legal government of Dr Hilla Limann,

Why did he accept laws passed by the illegal PNDC govt and applied them as a High Court Judge including the suspension of Habeas Corpus?

? Why didn?t he use the suspended Habeas Corpus law to free many of the persons detained in this country at that time?

? Applications that went before him as a High Court Judge were dismissed because Habeas Corpus had been suspended?

? The suspension of Habeas Corpus by the PNDC Establishment Proclamation and that of the Constitution were a violation of the rights of many Ghanaians especially those detained. Why didn?t he use the suspended Habeas Corpus law to free them when cases went before him?

? Has he indicted himself as an accessory to human rights abuse for applying PNDC laws?

His view on laws as it ought to be and what is on the statute book portrays him as either an academic who never sat in a court of law but rather propounded theories in a law school or at worse a lay person.

? In any case did the Law establishing the NRC give them the power to sit as an Appeal Court over Tribunal Trials?

? And if the answer is yes is that how appeal trials are conducted by his human rights standards?

? If the answer is no what was he up to?

? When the NRC started sitting he use to tell witnesses don?t say what happened in court after the trial what happened. This was the right legal approach until his attitude changed suddenly. What led to this sudden illegal change?

? How was the case for the Tribunals to be presented at his Appeal Commission?

He rather allowed accused and relatives to quote from portions of tribunal trial proceedings that suited their cases and levelled all kinds of vicious and wicked allegations against trial Chairmen and Panellist and it appears he has also read parts of records and ignored parts to suit his ruling to indict Agyekum.

? In any case does he know the difference between a Judge and a legislator?

? The Goka case was heard on Appeal and all these legal arguments were raised before a panel of three Judges and two lay panellists who confirmed the lower courts decision.

? Did he read the Appeal record and proceedings?

? If yes then he forgot to indict the Judges who heard an upheld the conviction, Or they were not indicted because they were not called George Agyekum?

While I think in truth and in fact no Judge deserves to be indicted, it is even strange to select one Judge among a stream of about five who have heard a particular case and indict that one for a so called human rights abuse. But it shows how selective and bias that the NRC had stooped so low to. Day in and day out at the NRC he said they were responsible for regulating their procedure and gave people accused of serious crimes and abuse, five minutes to cross examine if lucky they had ten minutes.

? Is that how the Evidence Decree of 1975 provided in cases of examination in chief and cross examination?

? He did not allow some people time to even finish their cross examinations. Has he indicted himself for breaching the Evidence Decree?

? The use of the words or rather phrase ?human rights abuse? is been construed become synonymous with disagreement in legal opinion or interpretation, rather than the real concept. Otherwise as a Judge was a misapplication of a law by Amua Sekyi overturned on appeal become a human right abuse?

? In any case let us take a classic example of armed robbers and other criminals lined up on our television screens and newspapers with puffed and swollen faces these days. Did judges who later tried them and admitted their confession statements and convicted them become accessories to their assault or abuse?

REMAIN RESOLUTE

Throughout the history of this country relatives of politicians and rulers have turned themselves into power brokers and sometimes have wielded more power than the official relative appointees. In the treason trial of 1986 there was overwhelming evidence of relatives of conspirators being used as surrogates for subversive errands.

When uncovered and arrested and made to face the law it is for those relatives who exploited their younger siblings to atone before their other kith and kin and ask for forgiveness and not to seek solace and/or scapegoatsism against the judicial system.

They need to show signs of remorse for allowing their selfish ambitions to override the safety and well being of their beloved now departed and ask God for forgiveness.

Politicians have attempted to use the Judiciary as a political football, disputing any kind of ruling that did not suit their cause, labelling Judges as unprincipled and operating under the thumb of the governments in power, even though their corruption or other nefarious activities sent them there. As soon as there is a new dispensation, where their influence counts, they subtly and even sometimes openly want to cow the Judiciary, this attitude should also stop. Judges should not be deterred by reports that may label them as human rights violators because they did their work and so called victims of yesterday, with the turn of the table are the power brokers of today.

A coup plotter is a coup plotter, corruption is corruption, Causing financial loss is causing financial loss and when uncovered, arrested, arraigned, tried and found guilty and sentenced so be it and so shall it be. If it is a battle of conscience then Amua Sekyi has a lot to do by purging his conscience with the shoddy work he just finished at the NRC and the report he has submitted, because it can never stand the test of time.

(George Agyekum)
Legal Consultant and Criminal Justice Expert,
Accra.

The Managing Editor, The Independent, Accra.