Stealing? Wait a Minute!!

Originally Written on 27 May 2009

I have followed with some interest the debate over the actions of the immediate past speaker of Parliament, the Right Honourable Sekyi-Hughes, with particular reference to his taking away, and threatened return of “soft furnishings and other amenities” from and to his former official residence. I hear people calling him all sorts of names and asking him to be prosecuted for stealing. Let me place on record that I think R. H. Sekyi-Hughes was wrong in taking the items without ensuring that all the bases were covered. But I doubt whether he can be successfully prosecuted for stealing. And, I definitely do not think that it is fair to call him a thief.

Déjà Vu
These are highly charged political times. Thus I must confess that I relate to this saga with some personal déjà vu because I cannot pretend to be completely innocent. Many years ago, I was a beneficiary-by-default of "soft furnishings and other amenities". So let me make the relevant contextual disclosures. Circa 1978: I was in class 6 and my late father was in a major crisis at his work place. Virtually the entire workforce was in near-revolt, threatening a complete shutdown of a critical part of the nation's transportation system if he was made the overall boss. The complaint? He was too strict, arrogant and a “small boy”: he was a mere 38 year old boy. Featuring prominently on his Sin List was that he suspended a worker for reading newspapers on the job. Soon the call changed to “remove him”. We would receive threatening phone calls, many of which informed a trembling mother mine that we were no longer safe in that town. One caller asked her to remind hubby hers that “aban edwuma, wo twe n’adze, wonfa nsoa” to wit, “you must drag government work its sorry behind on the floor and not carry it on your head, dummy!”

The hapless Acheampong government, teetering on the brink of imminent collapse and holding on to power by a shoe string after the farcical Unigov referendum, did not have the spine or stomach to stare down at the workers. They retired him. Yes, retired at the age of 38.

The family had to move on. But having worked for that employer since school, and having lived in ‘bonglos’ all the time, father mine really had very little of his own by way of “soft furnishings and other amenities”. And, as I learnt, succeeding employees, for the most part, did want even to use stuff that the preceding employee has used. The reasons vary from justifiable hygienic considerations to the beyond the pale fears of “juju”. The result was that such stuff, if not successfully foisted on the departing employee for chicken and rice payments, got dumped in some storage facility or warehouse, where it would be ultimately gobbled up by the weather, moth, rust and/or thieves.

Come the day we were to leave the official ‘bonglo’, we carried everything away with us: sitting room furniture, beds, and even forks and spoons. I suspect that father mine paid a song and a dance for them. But the significant part of this was that those items had been offered to him, he had accepted that offer, and the cost was deducted from his pension.

This was 1978; but in varying degrees, this practice has continued between most state-owned establishments and retiring employees. How do I know? Now, this is graphic. 30 years after leaving, I was visiting the same town and found myself driving to see the former house, only to witness our next door neighbour from three decades ago, finally moving from his official, government 'bonglo' to his retirement home. And, he was also taking away to his new abode (no prizes for guessing) the "soft furnishing and other amenities"! I walked up to the wife and introduced myself. We hugged and remembered the old times. I was told about the struggle to evict a tenant from the retirement home somewhere at the outskirts of the town. The departure from the government 'bonglo' had thus been delayed by about 2 years as they trudged the courts and paid lawyers to obtain an eviction order. In those two years they had stayed on in the government 'bonglo', I guess, without paying rent. The son, who was about 5 years old when we left the town, was now a doctor, practising in some western country. As we chatted, the stuff was being loaded into a waiting truck, to adorn the new home. Such memories get etched into your memory.

Stealing?
Circa 2009: R.H. Sekyi-Hughes leaves his official residence with “soft furnishing and other amenities”. Not the first time it has happened and definitely will not be the last time. However the clear distinction between his circumstances and my personal knowledge is that apparently he was not of one mind with his immediate past employers on what he could take and what he could not take. But does that amount to stealing?

Section 125 of the Criminal Offences Act ("COA" formerly known as the Criminal Code) simply provides as follows: “a person steals if he dishonestly appropriates a thing of which he is not the owner.” It is a very simple statement, but involves as many as 4 ‘ingredients’: (i) appropriation, (ii) dishonesty, (iii) a thing, and (iv) lack of ownership. Thus in any trial on the charge of stealing, the prosecution must prove each of these ‘ingredients’ of the offence, beyond reasonable doubt. There is no doubt that what R. H. Sekyi-Hughes took away amounts to “things” that he did not own. Thus ingredients (iii) and (iv) are not in dispute.

Even ingredient (i) is not really in dispute. Section 122 of COA tells us what amounts to ‘appropriation’. It says that generally, an appropriation of a thing means any “moving, taking, obtaining, carrying away or dealing with a thing”, plus the intention that some person would be deprived of the benefit of ownership or of the benefit of his right or interest in the thing, its value or its proceeds.

According to the section, the intention to deprive exists even if there is an intention to appropriate the thing temporarily or for a particular use, as long as the intent is so to use or deal with the thing that it will probably will be destroyed or become useless or greatly injured or depreciated, or restore it to the owner by trying to sell it back to him, or exchange for reward or for some other thing, or is pledged or pawned.

Where the person accused is a trustee with respect to the thing, he is deemed to have appropriated that thing if he deals with it with the intent of depriving the beneficiary of his right or interest in the thing, or in its value or proceeds.

Clearly, by taking away the “soft furnishings and other amenities” R. H. Sekyi-Hughes is deemed to have appropriated them. That deals with ingredient (i).

But ingredient (ii)? Dishonesty?

Section 120 of COA says that appropriation is dishonest if it is made with an intent to defraud or is made by a person who does not have a “claim of right”, and who knows or believes that the appropriation is without the consent of the owner or beneficiary, or that the appropriation, if known by such a person would be without his consent. Section 15 then states that “a claim of right means a claim of right in good faith.”

Let us also note that by virtue of section 13 of the Evidence Act (formerly known as the Evidence Decree), any prosecution will be required to prove each ‘ingredient’ of the offence “beyond reasonable doubt”. As lawyers love to say, the onus of proof lies on the prosecution. In the rather very well-researched and very well-written Commentary on the Act, it is stated that it not define the term “proof beyond reasonable doubt” because it is generally accepted that it is not possible to expand meaningfully on the connotation or denotation of that term. In other words, it means what it means. The section however provides that the burden of persuasion requires the accused only to raise a reasonable doubt. Thus one has to look critically to any fact “the converse of which is essential to guilt”, in other words this only applies to facts which if found against an accused, would either establish guilt or be an element of an offence or negative a defence. It has indeed been said that all a defence counsel has to do is to raise doubts, and that once he raises sufficient doubts about the charge, the accused is entitled to be acquitted.

I have read the letter that R. H. Sekyi-Hughes’ lawyers have written to the Parliamentary Service. Many commentators are pouring scorn on the letter this morning. What they miss the subtle hint in that letter, which to the trained eye raises serious doubt about the allegation that R. H. Sekyi-Hughes has ‘stolen’. In the letter, they refer to a “briefing” that R. H. Sekyi-Hughes received “relating to the provision of soft furnishing and other amenities and the disposal of same to the leadership and senior officers of parliament.” The letter provides no further particulars of this “briefing, but also refers to the “practice” by which “some retiring and exiting leaders and officers of Parliament” have benefitted from this “provision” and “disposal”. If such a “briefing” took place, and R. H. Sekyi-Hughes was led by that briefing to believe that he had a “claim of right” to those items, then any prosecution (real or imagined) will find it very hard to prove the ‘ingredient’ of dishonesty. A “claim of right”, as section 15 of COA provides, does not have to be perfect. It works to raise doubts as long as the claim of right was “in good faith”. If there was a briefing which led R. H. Sekyi-Hughes to believe that he had some claim to the items, then that claim was made “in good faith”, even if the claim was incorrect, wrong or mistaken. Any prosecution is likely to struggle to prove bad faith or that notwithstanding the alleged “briefing” and “practice” there was intent to defraud. Note, in an imagined trial, it will not be for R. H. Sekyi-Hughes to prove good faith. The burden will be on the prosecution to prove the negative, i.e. lack of good faith. That would be a huge, if not impossible mountain to climb.

What Next?
Any prosecution of R. H. Sekyi-Hughes, in my humble view, would be as ill-advised as his taking the items in the first place. Respectfully, R. H. Sekyi-Hughes made a mistake. He should have sought further and better particularisation on the matter before taking the items away. He did not. He took a step, believing that he had a claim to part of the items and that he would only be required to pay for the other part. It turns out that he was wrong, very wrong. The Parliamentary Service, we are told, has asked him to return the items. He should. But absent any evidence of bad faith or intent to defraud, he walks.

In the lawyers’ letter, R. H. Sekyi-Hughes offers to return the items. I think he should. Once the items are returned in as near as possible to the state in which they were taken (and who will be the judge of that?), this matter is over. Then Ghana would have recovered bed sheets, pillow cases and curtains, etc. which I am fairly certain the current speaker will not use. The items will, most probably, find their way to some PWD warehouse or storage facility and/or left to the vagaries of the weather, moth, rust and thieves. And we will all be much happier.

But before I end, permit me to engage in some 'self-righteous' semonising. When persons assume high public office, and are exposed to the perks and luxuries that come with the office, they sometimes forget about how life was really like before assuming office. They begin to think that the perks and luxuries that they are receiving are normal fare. Suddenly they are waited upon hands and feet. There are people to answer to their every call or need. They no longer carry their own bags and briefcases, and are ushered through VIP lounges in airports worldwide, whilst we ordinary citizens only look on, rue on how our taxes are being spent, and maybe wish and hope to be there some day too. Within months, ordinarily plain, simple and sensible persons are transformed into demi-gods who rule over all that they survey. We create them. Or the system that we have created, creates them. When they lose power, there is the sudden shock that life will return its former state. No free petrol. No free electricity. No free water. No free accommodation. No free cars. No free drivers. No free armed security guards who salute you for simply getting in or out of a car. No free access to the VVIP lounge. No free ride to and and from the lounge and planes in the Chryslers that JAK did not want. No free First Class and Business Class tickets. No nothing!! Just the freshly-unemployed you. Under those circumstances, this erstwhile demi-god is forced to clutch at straws, aka curtains, bedsheets, pillow cases, carpets, etc.

R. H. Sekyi-Hughes has been embroiled in a needless and unfortunate muddle and mess that threatens to devalue, diminish and run down whatever his achievements in steering Parliament for 4 years might have been, when he could have simply left office with his head held high. But that was not to be. Let history judge him, maybe harshly, maybe cruelly, maybe for lack of caution; but certainly not for stealing. He is not a thief.