…The Role of a Defence Counsel in Mitigation Plea- Strategies of Counsel(s) Atta-Akyea and Nii Ayikoi-Otoo in the Contemptuous Matters of Ken Korankye and Kwadwo Owusu-Afriyie & Others



BRIEFS & MEMOS



Law Gazette [1]: “Whether an accused pleads guilty or is found guilty after a trial, he is entitled to make, or have made on his behalf, a plea in mitigation before sentence is passed...A well-crafted plea in mitigation, eloquently delivered may make all the difference between prison and a non-custodial sentence. As defence counsel, your role in the delivery of a plea in mitigation, like in all other matters, is to safeguard and advance your client’s interest. Your duty is to see that all relevant factors on the question of sentence are?brought to the attention of the court. As an officer of the court, you have an obligation to ensure that you do not mislead the court or squander the court’s time. Where a client has previous convictions and the prosecution omits to put the record before the court, you are under no duty to make disclosure of the same, save that you must not assert that the client has no antecedents or direct questions to the prosecution in the hope of receiving an answer...”



INTRODUCTION



For over a decade in journalism, legal research and readings, I’m yet to stumble upon a mitigation plea where the defence counsel’s speech had been openly/highly pitched on the defendant’s or the counsel’s personal or professional relationship with the “disinterested judge/magistrate”, sitting on the case rather than the law, sentencing guidelines or the pre-sentencing report(PSR) on the convict. Yet the former Attorney-General and Minister for Justice- Nii Ayikoi-Otoo, successfully relied on his birthday celebration and the professional links, in tempering justice with mercy in rescuing his main client- Kwadwo Owusu-Afriyie, from imprisonment and revocation of his legal practice certificate. With counsel Atta-Akyea’s failed bid on Editor Ken Agyei-Korankye charges, it remains a tussle whether the rule of law was evenly served. You may also add: what if my counsel had no birthday or knew nobody at the bench or, whether Hon. Akyea acted in the best interest of his client?



COMMENTARY & ANALYSIS



On Wednesday, 14 August 2013, the Ghana’s Supreme Court hammered NPP General- Secretary Owusu Afriyie and Hopeson Adorye- an NPP Communications Team member, with GH¢5,000 and GH¢2,000, for criminal contempt and to retract what the Court described as offensive comments and apologise for same, respectively. Lawyer Owusu-Afriyie; who was ordered to sign a bond to be of good behaviour, was also directed to deposit the money with the court by the close of work, Thursday, 15 August 2013 or in default, serve six months’ prison sentence. Whereas Sir John conceded to have described Justice William Anaam Atguba “as a hypocrite, joker and a voodoo deity”, Hopeson, pledged that the opposition NPP “will go on a head cutting spree, cutting off the heads of NDC supporters should the Supreme Court declares John Mahama, as the president-elect”.



The background to this summons was on 02 July 2013; where the 9-member Court, presided over by Justice Atuguba, sentenced Ken Korakye and Stephen Atubiga, to a 10-day and 3-day prison term respectively. On 27 June 2013, the Court commanded Atubiga, Kwaku Boahen and Korankye, to appear before the Court to defend some comments attributed to them. Whereas NDC Atubiga was reported to have said that “Ghana cannot contain all of us if NPP wins the Court case”, Boahen said: “Do you think NDC will sit aloof and watch the court hand over power to NPP, never! It will never happen in Ghana and anyone can mark it on the wall.” The Daily Searchlight editor Korankye was accused of a front-page opinion justifying the Sammy Awuku’s contemptuous allegations.



On 26 June 2013, Justice Atuguba, hinted in court that Samuel Awuku “had engaged in an improper conduct on air, during a political discussion in which he criticized the 9-member panel justices for “being selective and hypocritical,” in citing a Daily Guide reportage of the Court’s proceedings.” The editorial opinion, Korankye questioned the Court’s resources in monitoring not only every newspaper but also broadcasting station or the internet in arriving at its decision on the Daily Guide and Awuku, whose comments, in the opinion of the justices, had sought to, scandalized the Court. Article 126 (2) of the 1992 Constitution provides that “the Superior Courts shall be superior court of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.”



In addition to this is Article 19 (12) which states: “Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed.” Art 19(11) states that “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” But the Court saw itself under contemptuous attacks. So, Awuku was summoned in the air the same afternoon before the Supreme Court to explain why “he thought contemptuous charges could not be hanged around his neck.” The remorseful NPP Youth activist apologized and the Lords hemmed him from further Supreme Court visit.



Yet it is argued that by virtue of separation of powers and the rule of law; the Supreme Court, could not have been the judge and investigator or the prosecutor in alleged contemptuous comments made outside Court. Thus; the judges frowned the Nemo iudex in causa sua (or nemo iudex in sua causa) rule- a Latin phrase which means literally that no-one should be a judge in his/her own cause. Legal-glossary.org notes that Nemo rule is a principle of natural justice that no person can judge a case in which they have an interest [2].



In R v Sussex Justices, ex parte McCarthy, [1924] 1 KB 256, [1923] All ER 233, it was held that: “The [Nemo] rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". Thus unlike in the ex facie curiae case of Republic v Mensah-Bonsu and Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 (SC), where it was the Attorney General, who brought contempt proceedings against the defendant (contemnor), who in a newspaper report accused Justice Isaac Kobina Donkor Abban; of being a liar in a “corrupted judgement transcript”, said to have been altered by the learned judge, the 9-member panel justices in the 2012 petition are accused of being judges in their own cause.



Thus, in reaching its decision on the Atubiga/Korankye case, the Supreme Court said, “Mr. Stephen Atubiga has shown thorough remorse, having admitted his error readily and started his retractions before his appearance before this Court. Nonetheless his utterances were very serious, they were intentionally made contemptuously. Accordingly we find him guilty of criminal contempt and sentence him to three days imprisonment. Ken Korankye on the other hand, has hardly shown any remorse. We were left in no doubt that he understood those parts of his publication, which impute deliberate selectivity and hypocrisy with regard to our remarks about Daily Guide and Sammy Awuku’s sanction...With regard to Kwaku Boahen, it is clear that whatever he said fell outside the touchline drawn by this Court. We accordingly dismiss the summons against him.”



The Court went further: “Ken Korankye clearly says that Sammy Awuku was right in describing us [judges] as hypocritical and selective, the things Sammy Awuku himself fully retracted and apologised to this court. If this is not defiance of the authority of this court and the due administration of justice, we do not know what else it can be. We have no doubt that the said statements are made with intent by him to defy the authority of this Court and the due administration of justice. Accordingly we find him guilty of criminal contempt of this court and sentence him to 10 days imprisonment.” Unlike in “Sir John & Adorye”, where Counsel Ayikoi Otto- succumbed to the wishes of the Court, in Korankye, Counsel Atta-Akyea, opted for the contrary. But the Court appeared legally hesitant to such intended defence strategy and arguments.



Yet legally, a court is neither duty-bound to defend nor obliged to assist the accused in presenting his case [1]. But a demand for a Charge Sheet outlining the charges against Korankye, raised feared eye-browns from the judges, especially, from Justice Atguba, who appeared personally scandalized by the comments made. On 8 July 2013, Presiding judge Atuguba claimed that “potentially contemptuous comments made by Kwadwo Owusu Afriyie have been brought to the attention of the SC. “The Court has also taken judicial notice of a publication in which someone [Hopeson Adorye], is daring to behead supporters of the NDC if the Court rules for John Mahama.” In reaching its decision on this matter Justice Atuguba said:



“the court reluctantly avoided imposing a custodial sentence on the two due to incessant pleas by the Peace Council and by the lawyer of the contemnors.” Ayikoi Otoo pleaded with the court “to temper justice with mercy and to give him what he described as “a 59th birthday gift.” Justice Atuguba, who appeared emotionally hurt by referring to the then NPP Gen-Secretary as ‘that thing’, jokingly, asked his convicts to take a measurement of their temperatures before shredding them. Justice Atuguba said he had never new Owusu-Afriyie, as an NPP politician and lawyer. Ever since, contempt in facie and contempt ex facie, as applied by the SC, continue to occupy many minds too.



In R v Cohn[3], Justice Goodman of the Ontario Court of Appeal said: “A contempt in the face of the court may be broadly described as any word spoken or act done in, or in the precincts of, the court which obstructs or interferes with the due administration of justice or is calculated so to do. [Example]: assaults committed in court; insults to the court; interruption of court proceedings; and refusal on the part of a witness to be sworn or, having been sworn, refusal to answer.” Justice Goodman states that contempt outside the court [are] words spoken or otherwise published, or acts done, outside court- eg. publications intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings; or obstruct persons having duties to discharge in a court of justice." The issue is: was SC fair on its attitude as far the counsels to the mitigation pleas were concerned?



PLEA IN MITIGATION



Law Gazette writes that “the aims in making a plea in mitigation are to: (1) obtain for your client the least punishment reasonably available in all the circumstances, consistent with justice; and (2) persuade and assist the court to find the most appropriate form of sentence for your client. As a client plea in mitigation comes in after conviction and immediately before sentencing after pre-sentencing report. [It] is not simply a presentation to the court of the factual background surrounding the offence, some mitigating factors about the accused and the offence, followed by a request for compassion and leniency...effective plea in mitigation must be meticulously prepared, as well as logically and boldly delivered as a reasoned argument directed to achieve a specific result.”



We applaud Nii Ayikoi-Ottoo on his “birthday strategy. But legally, the repeated reference to personal links he has/had with some members on the trial is a legal pitfall. R v Bow Street Metropolitan Stipendiary Magistrate[4][5], Ex Parte Pinochet Ugarte (No. 2)[1] was a case which involved the setting aside of a House of Lords judgment based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty International meant that a previous House of Lords judgment on the immunity of former Chilean dictator General Augusto Pinochet had to be set aside.



The Principle in that case is that “a man might not be judge in his own cause applied not only where the judge had a financial or pecuniary interest in the outcome of the proceedings, but also where the matter at issue was concerned with the promotion of a cause in which the judge was involved together with one of the parties.” From Justice Atuguba’s phrase- “that thing”, referred to Owusu-Afriyie, one is tempted to infer that the justices rather than the Court, felt personally scandalized and could not have been for example, independent and impartial towards Korankye and Sir John in a case they are deeply involved. In other jurisdictions, this together with Nii Ayikoi’s strategy could have prompted a perception of bias or per incuriam- a case decided on a wrong authority or law.



Indeed translegal.com[6] submits that the court is not bound to follow a decision of its own if it is satisfied that the decision was given per in curium, it seems that the SC shouldn’t have had a ready-made judgment by impressing upon the defendants to acknowledge guilty, remorse and apology. It should have rather opened itself to a thorough debate for an authority to be established. The role of a lawyer in a case is not only to cite the relevant law/ policy to the court but also, must have the ability is to point out its defects and weaknesses in a persuasive argument for its development as a poorly argued case can also produce uncertainty or a weak case law.



From this premise, Counsel Atta-Akyea’s demand for the Charge Sheet could not have been interpreted overly ambitious and legally suicidal as it could have contributed in the development of the contemptuous case law. A Charge Sheet shall contain statement of the offence with which the accused person is charged together with the particulars that are necessary for giving reasonable information as to the nature of the charge [see Dadzie v C. O. P. [1963] 1 GLR 244; Act 263 and Article 19(c) of the Constitution]. As it stands now, contemptuous statements against SC in a Presidential Election Petition trial is to have a counsel with a “birthday cake” and some links with judges”. Yes, personal connections of the same to the National Peace Council could also be crucial.



Yes; we are aware that legally, many things transpire behind the curtains of justice. We’re also reminded that the Peace Council has a stake in national security matters. But it is neither a Parole Board nor a Probation Service. Equally so, a newspaper’s report can’t be a Charge Sheet. We prayed not for the hanging of the defendants. But the Supreme Court erred in ruling that: “the court reluctantly avoided imposing a custodial sentence on the two due to incessant pleas by the Peace Council and by the lawyer of the contemnors.” At least not where the Court had flagged that save those involved in the matter, contempt could arise if anyone were to contact the Court in any form?



STRATEGY



It is said that if a client wishes to plead guilty, counsel should- before the commencement of mentions: (i) obtain a copy of the Charge(s) as well as Statement of Facts from the prosecution; and (ii) ascertain from them the client’s antecedent records (if any) and whether they intend to address the court on sentencing matters. “You should then go through the Charge(s), Statement of Facts (‘SOF’), and antecedent records with the client prior to the mentions, and confirm whether: (i) they are correct; and (ii) he is prepared to admit to them...” So, Atta-Akyea was not making a political inquiry that was scandalous or calculated to vilify or insult the Court vis-à-vis the Charge Sheet?



Sentencing Precedents- Yes, the objective of a mitigation plea is to seek leniency and instructions that qualify the plea should be explained to the offender and that there is no meter to measure regret or genuine repentance through admission of guilt and full restitution, generally; accused’s age, health condition family [first offenders], work record or exceptional circumstances, loss of employment, career or pregnancy, are taking into account by the court in assessing sentence. But a full knowledge of the court’s sentencing powers, (sentencing precedents), are said to be essential.



THESIS



Generally, it is said that at least, two or three current and up-to-date key character reference or professional contributions to the community from someone in the accused’s industry are paramount in a mitigation plea [7]. But had it not been legally botched, for the Supreme Court to accept Ayikoi-Otto’s reference to Justices Julius Ansah, Rose Owusu and the “59th Birthday” solemn plea?



This Commentary is authored By Asante Fordjour on behalf of The OmanbaPa Research Group



JusticeGhana

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References

Available On Request