WHAT IS IT ABOUT THE 'RIGHT TO COUNSEL' THAT THE BNI DOES NOT UNDERSTAND?

“The court in the execution of its duty to protect the citizen’s liberty always proceeds on the well-known principle, at any rate as acknowledged in democratic countries, of the primary necessity in the administration of the law to establish a healthy balance between the need to protect the community against crime and the need to protect individual citizens against abuse of executive power. Subject to the limits imposed on this twofold protection by the establishment and maintenance of the requisite balance, the scales are to be held evenly, at any rate in normal times, between the community, that is the State and the individual and there can be no question of ‘leaning over backward,’ so to speak, to favour the State at the expense of the citizen or to favour the citizen at the expense of the community. And the courts’ vigilance in protecting the citizen against any encroachments on his liberty by the executive becomes meaningful and real only when pursued on the basis of this principle.” Chief Justice Akufo-Addo, Ex Parte Braimah.

On 18th August 2009, the Human Rights Division of the High Court, presided over by Justice U. Paul Dery, in the case of Crabbe v. Attorney-General, delivered a basic lesson in decency, decorum and comportment to Ghana’s Bureau of National Investigations (“BNI”), that it is unconstitutional to question any person in the absence of that person’s lawyer, whether that person is formally under arrest or has been invited to a meeting or even to a “friendly conversation.”

The ‘right to counsel’, which is what the court upheld in the Crabbe case, is the fundamental and inalienable right of every person to have access to and the assistance of a lawyer of his choice at all times. This comes into particularly sharp focus when that person comes into contact with the law, so that once legal proceedings have commenced with respect to or against a person under circumstances where his liberty is threatened, that person is entitled to have access to and the assistance of a lawyer of his choice.

The decision in the Crabbe case came in the wake of two very interesting news stories, the import of which might have been lost on many. First, in an interview with the Daily Dispatch newspaper (reproduced at myjoyonline.com on 10th August 2009), President John Mills in answering a question about the recent performance of the BNI, is reported to have said this:

“I think they have done very well. We have always insisted on the institution acting within the law. I have also said publicly that so long as they operate within the law, they will have my full support. So far, I have no cause for regret. I think they are doing very well and they should be encouraged to do so.” [Emphasis added.]

By this interview, conducted at a time when the BNI was routinely refusing to recognize the citizen’s right to counsel, the President was emphatic that he had “no cause for regret” and that the BNI was “doing very well and… should be encouraged to do so.” Clearly, the President did not think that the BNI was doing anything wrong or was not operating within the law in denying the right of access to and assistance of counsel to persons.

Second, in a speech delivered at the 14th Awards Night of the Ghana Journalists Association on 15th August 2009 (published by myjoyonline.com on 16th August 2009), Vice President John Mahama said:

“… I wish to call on the security agencies in their investigations into any allegations of corruption or abuse of office by public office holders to exercise respect for the rights of the individuals they are investigating and carry out their work within the strict parameters of the constitution and the laws of Ghana.”

The obvious questions that beg for answers are: if the President was right, and that security agencies (including the BNI) were operating within the law and “doing very well”, what was the basis of the Vice-President’s appeal to or admonishment of the same “security agencies” to respect the rights of individuals under investigation? Does the Vice-President know something that the President does not know? Is it the case that the Vice-President was merely shooting the breeze when he gave that speech? Do the above-cited news reports suggest a public disagreement between the President and Vice-President on how security agencies, especially the BNI, are going about their work? As we ponder over these questions, the judgment of the court in the Crabbe case assumes particular significance as it resolves this matter in favour of the Vice President. But I digress.

Absent any face-saving-but-bound-to-fail appeal, this aversion that the BNI has for lawyers has been dealt a telling blow by our courts. But I would want to encourage the BNI to file an appeal so that three more senior judges of the Court of Appeal will emphasise what Justice Paul Dery has said. And then I would invite the BNI to appeal to the Supreme Court, so that five even more senior judges will rub it in some more.

But the purpose of this writing is not just to bask in the joy of this emphatic and resounding victory for human rights in Ghana. I write to trace the judicial and legislative history of the right to counsel, leading up to Justice Dery’s judgment, and to point out that this judgment cements a long-standing position that the citizen’s right to counsel is a fundamental and inalienable rule of law, and that although attempts have been made in Ghana to denigrate or otherwise do away with this right, it has stood the test of time and survived those who dearly wished for its death.

Under the First Three Post-Independence Constitutions
The 1957 Independence Constitution and 1960 First Republican Constitution did not contain any specific provisions on the right to counsel. As the Supreme Court infamously held in Re Akoto, even a declaration of fundamental rights and freedoms required by article 13 of the First Republican Constitution to be made by Ghana’s first President upon assumption of office, was nothing more than a declaration of intent, similar to the coronation oath of the Queen of England; it therefore did not constitute an enforceable Bill of Rights. The court was also of the view that article 13 was unenforceable because the use of the word “should” instead of “shall” did not impose legally enforceable rights, but only created a moral obligation.

I fully endorse the criticism of the Re Akoto decision by Professor Emeritus S. O. Gyandoh in his article titled “Principles of Judicial Interpretation of the Republican Constitution of Ghana,” as “mechanistic” and a missed “golden opportunity”.

As history and the sands of time turned, Ghana got that “golden opportunity” when the 1969 Second Republican Constitution came into force with an elaborate bill of rights. However, what is of much significance to current developments in Ghana is article 15(2) of that Constitution, which provided as follows:

“Any person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to consult Counsel of his own choice.” [Emphasis added.]

This provision is significant because it was reproduced in the Third Republican Constitution as article 21(2) and has been repeated in the Fourth Republican Constitution as article 14(2). It is important to point out that this formulation of the constitutional provision assumes the existence of the right to counsel as a fundamental human right. What the provision does is to require that at the point of arrest, restriction or detention, the citizen should be informed of this right.

It is interesting to note that the original formulation of this article by the 1968 Akufo-Addo Constitutional Committee did not include the words “restricted” and “of his right to Counsel of his own choice”, although clause 22(2)(d) of the draft constitution had provided that a person charged with an offence should be permitted to defend himself in court “by a legal representative of his own choice.” It appears that it was the 1969 Consultative Assembly that which inserted the word “restricted” and the right to counsel, which finally appeared in article 15(2).

I further note that article 15(2) did not reserve the right to counsel to only persons who have been arrested. The right also extended to persons who were restricted or detained. I do not think that the framers of the Second Republican Constitution were either being unnecessarily verbose, or engaging in an exercise to show off their knowledge of synonyms, when they specifically provided for the right to counsel to be respected when a person is “arrested, restricted or detained.” Arrest connotes being taken into custody, or taken in for questioning. Section 3 of the Criminal and Other Offences (Procedure) Act provides that an arrest is made where the person to be arrested voluntarily submits to custody. If that does not happen, then the person making the arrest is required to “actually touch or confine the body of the person to be arrested.” As the learned jurist and writer A. N. E. Amissah states in his book entitled “Criminal Procedure in Ghana”, an arrest is “any form of deprivation of personal liberty.”

The framers of the Constitution wanted the right to counsel to be respected, not only where there has been a formal arrest, but upon every other restriction or detention. Restriction refers to any form of limitation, constraint, restraint or control being exercised over a person. Detention means to be taken into custody, incarcerated or locked up. These words were deliberately used so as to cover every conceivable situation where any form of restraint, however slight, is exercised over any person by any authority.

Thus if a person appears before any investigative authority such as the BNI, what triggers the right to counsel is whether that person can walk out of the offices, unhindered, at any time. If the person can do so without being restrained, then that person has not been “arrested, restricted or detained” and so issues concerning his/her right to counsel may not arise, particularly where the person voluntarily gives a statement to that authority. However, if, as we have seen from BNI’s unacceptable modus operandi, a mere refusal to answer questions leads to the person being formally restrained, then that person has been under arrest, restriction or detention all along, and his right to counsel would clearly have been violated during that period. Further, and as the court has held in the Crabbe case, once the BNI takes away your phones and moves you from office to office, you surely are under a restriction and the right to counsel immediately arises. This is reinforced by section 9(2) of the Criminal and Other Offences (Procedure) Act, which demands that “a person arrested shall, while in custody, be given reasonable facilities for obtaining legal advice.”

The Court of Appeal had the first opportunity to interpret and apply article 15(2) of the Second Republican Constitution in the case of Okorie alias Ozuzu v. The Republic, where a police officer who was investigating an alleged crime of murder, took statements from the accused, but failed to inform the latter of his right to counsel as required by article 15(2). The accused person confessed to the crime in those statements. He was convicted and sentenced to death. On appeal, his lawyers raised the issue that the statements had been taken in violation of the constitutional right to counsel and therefore should not have been admitted in evidence.

In the unanimous decision of the court that was read by Chief Justice Azu Crabbe, the court stated that on account of there having been no provisions on the right to counsel in the Independence and First Republican Constitutions, “there [was] complete lack of authority of any Ghanaian case law which should guide this court in solving the questions which face it.” His Lordship nevertheless said that because “the provisions of article 15(2) provide guarantees similar to those found in the Sixth Amendment to the United States Constitution” he was justified to “look for assistance from cases decided in the American jurisdiction on the Sixth Amendment.”

The relevant provision of the Sixth Amendment to the US Constitution provides as follows:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” [Emphasis added.]

The Court of Appeal reviewed a number of American cases on this provision and English cases on the matter and concluded that the right to counsel was “an extension of the common law principle relating to the liberty of the individual in a democratic society.” Thus, what article 15(2) did was to superimpose the “safeguards provided by the common law for the protection of the individual…, [over] the further safeguard that the person “arrested, restricted or detained” should be informed immediately of “his right to consult Counsel of his own choice.””

The court stated further as follows:

“The clause in the 1969 Ghana Constitution which guarantees the right of a person under arrest or detention to consult counsel appears to have been deliberately inserted by the Constitution-makers, having regard to the wanton suppression of personal liberty during the First Republic. The object of the whole provision of article 15(2), it seems to this court, is, to enable a person, who thinks that he is unlawfully detained or restricted, to apply, or to instruct counsel to apply on his behalf, to the High Court for an order of habeas corpus to secure his release… It seems to this court that the guarantee of the right to consult counsel is based on the Sixth Amendment to the Constitution of the United States of America, and in our opinion the interpretation of the second limb of article 15(2) should, therefore, be made consistent with the decisions of the Supreme Court of the United States on the Sixth Amendment, which, though not binding upon this court, are no doubt of persuasive authority in this country. So interpreted, it will mean that a departure from the procedures required by article 15(2) would render inadmissible at the resulting trial any confessional statement obtained from a suspect.”

The court also firmly and emphatically rejected arguments by the State that the accused persons waived their right to counsel by not objecting to making the statements, in the following words:

“An accused person cannot be held to have easily acquiesced in the loss of his fundamental rights, and the prosecution must prove that he knowingly waived those rights. There is no proof of any conscious waiver in this case, but counsel for the Republic…, has contended that failure to inform the second appellant of his right did not occasion a miscarriage of justice… [It] is irrelevant that an infringement of a constitutional right has not occasioned a miscarriage of justice. Any breach of the provisions of the Constitution carries with it not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say, the breaking of the fundamental law of the land…. The statements… were obtained in violation of the second appellant’s constitutional rights, and consequently, we hold that they were inadmissible in evidence at the trial of the second appellant.”

I must point out that although the court found that the statements obtained in violation of the right to counsel were inadmissible, it found that there was other evidence that was properly before the court, and which was sufficient to support the conviction. Thus the appeal failed. But the right to counsel was upheld. This means that in the absence of the other evidence, the convicted murderers would have walked free.

Under NRC/SMC
The “small amenities” coup of 13th January 1972 led to the suspension of the Second Republican Constitution by the National Redemption Council (Establishment) Proclamation, 1972. Section 3(2) of that Proclamation nevertheless provided that “enactments” and “rules of law” in existence immediately before 13th January 1972 were to “continue in force.”

The question then was whether the right to counsel was a “rule of law” that was to “continue in force” notwithstanding the suspension of the Second Republican Constitution. This question was answered with a resounding “yes” by Justice Taylor in the case of Republic v. Akosah, where the key issue was whether incriminating statements made by an accused person in the absence of his lawyers were admissible in evidence. The lawyer for the accused raised this objection on the basis of article 15(2) of the suspended Second Republican Constitution and the Okorie case. The state attorney argued that that Constitution and its provisions on fundamental human rights had been suspended and could therefore not apply to the matter before the court.

In an uncharacteristically short ruling, Justice Taylor described the argument that the rights formulated as rules of law in the Constitution have been abrogated by the Proclamation as “misconceived” because “article 15(2) is clearly a rule of law.” He said that in the Okorie case, Chief Justice Azu Crabbe “put the matter in such clear language as to dispel in my view any argument that article 15(2) is not a rule of law.” In effect the right to counsel was saved and not abrogated in spite of the suspension of the operation of the Second Republican Constitution. He therefore held that the statements were inadmissible and directed the jury to return a verdict of ‘not guilty.’ He said:

“… there is much to be said against a system that excludes a statement voluntarily made merely because the accused was not informed of his right to consult counsel of his own choice. …one important consideration… which commends itself to me, is that if the law enforcement officers of the State are permitted to depend for convictions on confessions instead of on an independent source pointing to guilt, the administration of justice will be discredited and the law enforcement officers will be encouraged to use brute force to obtain confessions. The quality of the material supporting convictions in an adversary system of justice will suffer.”

This decision of Justice Taylor, delivered on 6th November 1975, clearly did not go down well with the government of the day. Indeed as at that date, there was another matter (Marhaba v. The Republic) pending before Justice Taylor, and counsel for the accused person had raised an objection based on an alleged violation of the right to counsel. The matter had been adjourned for the state attorney to respond to the arguments. The government panicked. Before the adjourned date, the Supreme Military Council passed the Criminal Procedure (Amendment) Decree, 1975 (SMCD 3), to specifically make admissible, statements that are taken from accused persons in denial of their right to counsel. SMCD 3 provided specifically as follows:

“(1) Notwithstanding any enactment to the contrary, in any proceedings commenced after the first day of August, 1969, no statement shall be inadmissible by reason only of the fact that the person making such a statement had not been informed of his right to consult counsel of his own choice prior to the making of such a statement.(2) For the avoidance of doubt, the provisions of Article 15(2) of the suspended Constitution of 1969 shall not render any statement inadmissible as evidence.”

It is apparent that SMCD 3 sought to sound a death knell to the application of right to counsel to render inadmissible, statements obtained from citizens in violation of that right. But that statute is significant, at least, in one material respect: that it required an express legislation to make admissible, evidence obtained in violation of the right to counsel.

In the Marhaba case, Justice Taylor lamented that SMCD 3 “was passed nullifying in effect the legal implication of my decision” in the Akosah case, calling it “an unfortunate provision.” He added that in seeking to deprive article 15(2) of its effective sanction, the legal draftsman lost sight of the fact that the provision was not new to Ghana’s statute law, and that section 9 of the Criminal Procedure Code (now christened the Criminal and Other Offences (Procedure) Act) provided that a person who had been arrested should among others “be given reasonable facilities for obtaining legal advice.” He added:

“It seems therefore, that it is this provision which was raised to a constitutional level in 1969 and thus made a corner-stone of ordered liberty. Of course the legislature has spoken and the duty of the courts is to give effect to the legislative fiat but I must remark that it is infinitely better and a good measure of an advanced and civilised criminal justice system where the police endeavour to carry out investigations in order to obtain independent material pointing to guilt instead of their being encouraged to browbeat the citizen to make admissions to be used subsequently in convicting the citizen. Ours is an adversary system of justice, with the police having huge powers and extraordinary advantage over the citizen. The whole machinery of the coercive apparatus of the State is at their disposal. If these police powers are not to be subject to some form of control by the courts a really terrible state of affairs difficult to envisage or describe may ultimately emerge.”

One can literally hear the sadness and grief that Justice Taylor was expressing, as he continued as follows:

“S.M.C.D. 3 is now law. It is on the statute book and force must be given to it but I think the law officers of this Republic must try to persuade the police that the law exists to protect everyone, and that the courts of justice exist for just that purpose… In 100 years of trying to fulfil the law since our courts were established in 1876, the judges thereof have had very intimate knowledge of the problem and difficulties of the police and all that the courts do is to balance these difficulties with the needs for legality. For these reasons we have without question by convention adopted the Judges’ Rules which were formulated in England in 1912 although we have no statutory basis for it and we have so adopted them as guide-lines to help us to help the police because of the difficulties they face in their onerous work of maintaining order. I nearly said law and order!”

The panic and ‘politics’ behind the passage of SMCD 3 was not lost on Justice Taylor. He took the Chief State Attorney to the cleaners with these words:

“My expression of regret is without disrespect to the legislature; it is animated by the fact that S.M.C.D. 3 was passed when the appellants’ counsel’s argument on the exhibits had been concluded but the Republic had not yet answered the submissions made in the said arguments. The unfortunate impression thus created that the Republic’s representative instead of answering the submissions may have plied the corridors of power and thus sought help from another forum is the consideration that compels me to express regret. I find it difficult with my professional training to resist the feeling, perhaps emotional, that legal arguments advanced in the course of judicial proceedings in the courts ought not to be stifled by legislative interference as that may undermine the fair and proper administration of justice. I think those who practice law and advise the citizen in this Republic should be encouraged by all the estates of the realm: the legislature, the executive and the judiciary to cherish their just expectations that legal advice given to the public and legal proceedings and processes commenced on the basis of the then subsisting law will not be stultified post facto. If this is not done there will be no certainty in the law and the whole machinery of the law will be brought into disrepute. The law officers of the state have a responsibility by their advice to avoid this potential source of chaos and danger in our legal order.”

Subsequently, in his 1979 decision in Tinieye v. The Republic, Justice Taylor held, rather wryly, that although the accused persons were not informed of their right to counsel, “the provisions of SMCD 3 are so clear that it is neither possible nor permissible by any process of interpretation to hold that the statements which [they] made could be legitimately excluded as inadmissible evidence for failure to inform them of their right to consult counsel.”

It is important to point out that SMCD 3 did not abrogate the right to counsel, because section 9(2) of the Criminal and Other Offences (Procedure) Act, remained in force and by its terms, arresting authorities were mandatorily required to afford persons arrested reasonable facilities to obtain legal advice. What SMCD 3 succeeded in doing, was to make admissible, evidence obtained in breach of this right.

Under the 1979 Constitution
Justice Taylor’s decision in the Tinieye case was delivered on 15th August 1979, a little more than a month before the 1979 Third Republican Constitution came into effect. As pointed out above, article 21(2) of that Constitution reproduced the right to counsel provision from the Second Republican Constitution. Indeed, the 1978 Aboagye Mensah Constitutional Committee stated at paragraph 86 that:

“The provisions of the 1969 Constitution on the liberty of the individual, and the very eloquently and powerfully argued rationale provided for these provisions by the 1968 Constitutional Commission has received acclaim not only in this country but by learned and experience luminaries from other parts of the world. Nothing that has happened since those provisions were recommended and enacted has in any way affected the validity of their rationale nor their essential necessity and adequacy in the continuing defence of the ramparts of freedom of the individual from arbitrary or tyrannical governmental authority.”

The question to ask then is, what happened to SMCD 3 when article 21(2) of the Third Republican Constitution came into effect? Article 1(2) of that Constitution provided as follows:

“This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.”

Commenting on this provision, Justice Taylor said, in Sam v. Comptroller of Customs & Excise that it “at once cast into a crucible… all the laws of the land and subjected them to the test of constitutional propriety. All those that failed the test became void.” And according to Justice Sowah in Tufuor v. Attorney-General, this provision “is the constitutional criterion by which all acts can be tested and their validity or otherwise established.”

Article 4(6) of the Third Republican Constitution also provided that all existing law “shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.” It is therefore obvious that any portion of SMCD 3 that was not in conformity with the Constitution was no longer good law.

The learned writer, Maxwell in his book entitled “Interpretation of Statutes” has said that “it is impossible to construe absolute contradictions. Consequently, if the provisions of a later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later.” There are many decisions on the implied repeal of statutes in Ghana. My personal preference, in terms of clear and succinct language, is Ghana Railway & Ports Authority v. Okakbu, where the court said that “it is an elementary rule that an earlier statute must give way to a later, if the provisions of the later enactment are so inconsistent with, or repugnant to those of the earlier that the two cannot be reconciled; and one Act may repeal another expressly or by implication. It is enough if there are words which by necessary implication repeal it.”

Clearly, the entire provisions contained in SMCD 3 were inconsistent with and repugnant to the provisions of article 21(2) of the Third Republican Constitution. Although no court got the opportunity at the time to formally declare it so, SMCD 3 was rendered “void and of no effect” upon the coming into force of that constitution. SMCD 3 was passed, specifically to render as admissible, evidence taken in violation of the right to counsel at a time with the Second Republican Constitution was under ‘suspension.’ With the coming into force of the Third Republican Constitution, SMCD 3 was rendered inoperative.

However, one would have expected that the government of the Peoples National Party (“PNP”) would, even if just out of the abundance of caution, have specifically passed a Statute Revision Act to remove SMCD 3 and thereby rid Ghana’s statute books of that statute. The PNP did not find this necessary and did nothing about it until the party was removed from power.

Under the PNDC
When the PNP was overthrown, the Third Republican Constitution was suspended. The PNDC passed the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42), section 1(1)(b) of which provided as follows:

“All organs of Government, persons and authorities exercising legislative, executive, administrative or judicial power shall be guided in the performance of their functions by the following Directive Principles of State Policy which provide the basic framework for the exercise of all power of Government… respect for fundamental human rights and for the dignity of the human person are to be cultivated among all sections of the society and established as part of the basic framework of social justice.”

What then was the legal status of SMCD 3? Could it be said to have been revived and brought back into force on account of the suspension of the Third Republican Constitution?

To answer that question, I will borrow from Justice Archer’s poetic illustration of his favourite mythical sacred firebird, the phoenix. In Ampadu v. Dadzie, he said that “what is null and void cannot be resurrected or revived. It is unlike phoenix which can burn itself in a funeral pyre and then rise from its ashes with renewed strength and live on.” In Fattal v. Minister of Internal Affairs, he said that once a statute has been rendered inoperative, “unlike the phoenix, it will never rise from its ashes and operate again.” He added that when a statute becomes thus “extinct and obsolescent… its repeal is not necessary. It remains on the statute books not as operative law but as legal history evidencing the despotic handiwork of a military regime.” Its repeal, he said, “will only cleanse the statutory books of a piece of nauseous debris.”

In Amoah v. The Republic, Justice Kpegah, in deciding whether to hear an appeal that was filed out of time, minced no words in holding that section 1(1)(b) of PNDCL 42 required respect for the right to counsel. After quoting the said section, his Lordship had this to say:

“The law inexplicably makes no attempt to define what it considers as fundamental human rights. One thing I am certain of, considering our constitutional history and development, is that the right to counsel of one’s choice cannot be said to be outside the scope of what can be regarded as “fundamental human right” worthy of recognition and enforcement by the courts. This is why I view with concern the indecent haste with which the appellant was put before court after having been kept in police cells for several days without access to counsel. I am of the opinion that the appellant’s fundamental right to counsel of his choice has been violated in this case and he cannot be said to have been offered the opportunity to adequately prepare his defence. This is a case in which expert legal advice would have been of tremendous assistance to the appellant. To exacerbate his difficulties or predicament, the appellant was immediately taken to a prison in another region where his handicap in securing the services of counsel could only be enhanced. The cumulative effect or combination of certain factors in seriously inhibiting the appellant’s desire and capability of immediately pursuing an appeal cannot be ignored.”

At the time Justice Kpegah delivered this decision, SMCD 3 was on the statute books. It does not appear that Justice Kpegah’s attention was drawn to this. My view, however is that his Lordship was entitled to ignore SMDC 3 because it was no longer good law, notwithstanding the suspension of the Third Republican Constitution.

It is therefore interesting to discover that the ‘dead’ SMCD 3 ‘did a phoenix’ and it found its way back to court in the 1992 decision of the Court of Appeal in Nyarko v. The Republic. In that case an accused person who was not informed of his right to counsel before an alleged confession, contended that his constitutional right was violated, which therefore rendered his confession inadmissible. The court however held that the decisions in the Okorie and Akosah cases were “no longer good law” on account of SMCD 3, saying:

“…this clear provision of the law makes it impossible for any statement obtained in flagrant disregard of the provision of the constitution to be described as inadmissible.”

The court however found that under the Evidence Decree (now the “Evidence Act”) the confession statement was inadmissible because it was not made in the presence of an independent witness. The Court of Appeal in the Nyarko case did not consider the legal status of SMCD 3, thirteen years after it was effectively declared “void and of no effect” and thereby impliedly repealed by the Third Republican Constitution. And, by virtue of section 8 of the Interpretation Act, the suspension or repeal of that Constitution could not have revived SMCD 3. The only reason that the court considered and applied SMCD 3 was because it had somehow managed to remain in the statute books as a result of tardy legislative housekeeping. It has remained unnoticed for the most part, and no concrete steps had been taken to expressly remove this “nauseous debris” from our laws. But as lawyers will say, this decision was given per incuriam, i.e. given in inadvertence of the fact that it was rather SMCD 3 that was no longer law.

Under the Fourth Republican Constitution
The Fourth Republican Constitution came into effect on 7th January 1993, and its article 14(2) contains a near-verbatim reproduction of article 15(2) of the Second Republican Constitution and article 21(2) of the Third Republican Constitution. Article 14(2) provides as follows:

“A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.”

It appears to me that the ‘back and forth’ over the right to counsel was on the mind of the 1992 Asante Constitutional Committee when it said that:

“In an attempt to dispel the possible impression that a right not expressly guaranteed may enjoy less protection than those specifically set out, the Committee proposed that the provisions of Article 21 Clause 2 of the 1979 Constitution be retained.”

With the coming into force of the Fourth Republican Constitution, SMCD 3, even if it still had somehow retained legal force (which is denied) has once again been rendered null and of no effect. Yet SMCD 3 remains on our statute books. I respectfully urge the Statute Law Review Commissioner and Parliament to take immediate steps to remove this “nauseous debris” of a statute once and for all.

I however cannot see any court enforcing SMCD 3 under this constitutional dispensation, and it is not surprising that BNI’s lawyers did not even refer to this statute in their arguments in the Crabbe case.

My Concluding Comments
The BNI does not appear to appreciate that the right to counsel is a fundamental rule of law that has roots in common law and our statutes, and can only be taken away by express legislation. In the ‘dark’ past, SMCD 3 was that legislation. That is not the case any more. I therefore wonder why the BNI would want such a matter to end up in court for a pretty obvious judgment to be delivered against it. The BNI’s aversion to legal counsel for people it arrests or ‘invites’ made the institution risk a public slap on the wrist by the court, rather than uphold a basic principle of human rights.

Their position is even more disturbing because the judgments in the Okorie and Akosah cases and the provision in section 9(2) of the Criminal and Other Offences (Procedure) Act, have been reinforced as good law by article 14(2). Thus, any evidence that the BNI might obtain (and this applies even to confessions) in breach of the right to counsel stands the risk of being thrown out by the court as inadmissible evidence. Further, the denial or refusal of the right to counsel renders any arrest, restriction or detention of such a person unlawful and an actionable infringement of that person’s rights; and as article 14(5) says, such persons are entitled to compensation from the State!

In other words, this stance of the BNI does not only render any valuable evidence they might have gathered potentially inadmissible in court (and therefore useless for any purpose), it makes the State liable to compensate (i.e. pay money to) such persons. So that we do not only risk having criminals acquitted and discharged on account of critical evidence being rendered inadmissible; such persons can sue the state for compensation.

Let the BNI be reminded that an arrest per se is not an end in itself and is certainly no punishment. Indeed whatever the BNI thinks of itself, it can only arrest persons under one of the seven circumstances that the Constitution has set out in article 14(1), namely (i) to execute a sentence or court order against a convict, (iii) to execute a contempt order, (iii) to bring a person before court in execution of a court order, (iv) for the treatment or care of a sick person, drug/alcohol addict or vagrant, (v) for the education or welfare of a minor, (vi) to prevent the unlawful entry of a person into or effect the expulsion of a person from Ghana, or (vii) upon reasonable suspicion that the person has committed or is about to commit an offence.

The BNI is clearly suffering from the dilemma being an agency that was established and in place before a law was passed to recognise its existence and regulate its operations. It appears that by the time the relevant law, the Security and National Intelligence Agencies Act was passed in 1996, the BNI had acquired certain habits and had become addicted to certain practices, which it is finding very hard to turn away from. But this has got to end. We all have a role to play in weaning the BNI off its unacceptable habits and practices. And this will start by compelling the BNI (through court actions and public advocacy, to recognise that its continued existence under the 1996 Act was essentially as the nation’s “Internal Intelligence Agency,” and that the power of its officials even to make arrests pursuant to its functions under the Act, was specifically legislated under section 40 of the Act to be subject to article 14(2) in the following terms:

“Subject to the Constitution, an employee of any of the Internal Intelligence Agencies shall in the performance of his duties under this Act have the same rights and powers as are conferred by law on a police officer in the performance of his duties and shall have the same protection.”

The BNI needs no reminder that it is not the court. It cannot send people to jail on its own accord. If it arrests a person, it must produce that person in court within 48 hours. Any evidence that the BNI gathers will be tested in court, and will only stand to convict a person if that evidence proves the commission of an offence beyond reasonable doubt. This is a heavy burden because the consequences on the reputation and life of a person alleged to have committed a crime are very great. As the work of the BNI will ultimately be tested in court, I would recommend to the BNI, the wise and enduring words of Chief Justice Akufo-Addo that the courts will always strive to maintain a balance between protecting the community against crime and protecting the citizen from abuse of executive power. The courts have clearly shown that they are prepared to hold these scales evenly and would not lean over backwards to favour the State or the community at the expense of the citizen; and vice versa. Let the BNI do the work that it was established to do. But the BNI must learn and obey the rudiments and fundamental principles of constitutional democracy, however belatedly, and begin to recast itself in the mould of an effective and efficient, yet law-abiding, intelligence body. Let the enforcer of the law respect and obey the law it seeks to enforce.

Yours in the service of God and Country,
Kojo Anan
http://kojoanan.blogspot.com
http://www.i-can-ghana.com