17 YEARS OF CONSTITUTIONAL DEMOCRACY – THE MANIFESTATIONS OF MILITARY ‘JUSTICE’

“Fiat justitia, ruat coelum,” i.e. "Let justice be done, though the heavens fall."
Lucius Caesoninus, Roman statesman.

There are 2 developing news stories about the military and the law that should give Ghanaians grave cause for concern. The first is the story that 2 persons arrested in Bawku (the “Bawku Two”) were stripped naked and marched through the town. The second is the alleged absconding of one of the three persons standing trial for alleged murder.

The Story of the Bawku Two

Of course, the military denied having stripped the Bawku Two naked. Of course, we could tell from the radio interviews that the military spokespersons were lying or had naively believed the denials of the perpetrators. Of course, we have now seen pictures and video, which confirm that the military lied to Ghanaians and that the Bawku Two were clearly subjected to torture.

I have had occasion to comment about the modus operandi of some of Ghana’s security institutions, who, some 17 years into constitutional democracy, are yet to come to full terms with what that entails. I have spoken with security personnel who think that the constitution should rather be amended to recognise the way they operate. And, of course, I have spared no words and effort in telling them how preposterous that position is.

Ghanaians, I believe, recognise the severity of the situation in Bawku and appreciate all the efforts that are being made to bring calm and sanity to Bawku. However, nothing that is happening there provides any justification for the treatment meted out to the Bawku Two. And what was that supposed to do? Bring an end to the fighting there? If the military had any evidence that the Bawku Two have committed any offences, they should simply put them before court and let the courts of the land do their work. Security institutions in Ghana must understand that they have no power to discipline any person for any alleged infractions of the law. The era where persons who are arrested were subjected to brutalisation that was given exotic names like ‘talk-true-slaps’ should be really and truly over.

But as a nation, we are collectively guilty for turning a blind eye to the continued brutalisation of suspects. We see, on our televisions screens and in our newspapers, persons arrested for alleged crimes, bearing all kinds of swellings and injuries, which could not have been self-inflicted. Yet we pretend that we have not seen them. One day, very soon, a court in Ghana is going to summon the guts to free persons accused of committing crimes, on the sole ground that confession statements were obtained by means of torture. Then the full effect of these obvious beatings will come home to us.

When some human rights advocates raise questions, we berate them and call them names on our radio stations. Guess what? You, dear reader, might be the next victim of police or military beatings, if we do not take a collective decision to end this obvious injustice and blatant violation of our constitution. Today it is the Bawku Two. Tomorrow it might be YOU. The only difference between you and the Bawku Two, is that it has not happened to you yet.

Article 15(1) of our constitution provides that “the dignity of all persons shall be inviolable.” “Dignity” refers to the self-esteem, self-respect, worth, nobility and even the pride of a person. What the constitution says is that this should be considered and treated as sacred and sacrosanct and shall not be violated. By the use of the word “shall” it is mandatory for everyone to respect this. And, this applies to “all persons”, that is each and every person, including persons who are arrested. That is why article 15(2) specifically provides as follows:

“No person shall, whether or not he is arrested, restricted or detained, be subjected to -
(a) torture or other cruel, inhuman or degrading treatment or punishment;
(b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.”

There is no doubt, from the pictures and video that we have seen, that the Bawku Two were subjected to torture. The stripping and parading through the streets was vicious, heartless ruthless and cold-blooded. It humiliated, debased and demeaned the gentlemen. This is what article 15(2) outlaws. There is no doubt that the military authorities in Bawku, blatantly infringed Article 15 with respect to the Bawku Two, and urgent action has to be taken against the perpetrators of these acts.

It was in 1966, after Kwame Nkrumah’s overthrow, when another Ghanaian (Boye Moses) was chained and caged, and driven through the streets of Accra, to alleged cheers from onlookers. To date, I have not read that Mr. Moses was subsequently convicted of having committed any offence. Yet this nation turned a blind eye to (and by conduct, endorsed) this public humiliation. I heard some radio journalists and discussants seeking to justify the treatment of the Bawku Two. That was truly sad. This might not happen to me, personally. But that is no justification for it happening to the Bawku Two. It does not appear from the happenings in Bawku that we have moved one step from the 1966 crude mentality. I sincerely wish to be proved wrong by the military taking action against the perpetrators, so that they are tried in civilian courts or face a court martial. The Bawku Two should also take civil action against the state (vicariously) and the direct perpetrators of this act, to make them pay civil damages for this breach of their human rights.

The Story of the Escaped Murder Suspect

It is against this background that we should consider the strange story that we are being told by the military authorities, that a person accused of and charged with murder, and who is not on bail, was allowed to return to his barracks, was allowed to continue to work as a soldier, was transferred from Tamale to Accra, was given responsibility for checking armed robbery, and has escaped – or, as we are hearing today, has been given a posting outside Ghana. I cannot believe that the entire nation is not having a massive, collective heart attack over this matter.

On Wednesday 25th March 2009, the front page of the Daily Graphic quoted the trial judge in Tamale, Mr. Justice Lawrence Mensah as saying that “the accused persons, who are presumed to be in the custody of the military, whether in Tamale, Accra or elsewhere, should be transferred forthwith to prison custody in Tamale to facilitate their easy access to the court.” The judge, after making this order, adjourned the case “to allow the military ample time to produce the suspects when the case is called the next time.”

The Ghanaian Times report of the same date (tucked at the back page) stated that the accused persons had failed to show up in court when the case was called. The acting Director of Public Prosecutions, who had travelled from Accra for the trial in Tamale, is reported to have expressed surprise and thus prayed the court “to direct the Military Command to transfer the three soldiers from military custody to prisons remand to facilitate the trial.” The court obliged and made the relevant order.

According to the Ghanaian Chronicle report of the same date (in the centre spread), Justice Mensah’s order was specifically directed at the “Commanding Officer (CO) of the 6th Infantry Batallion Regiment of the Ghana Armed Forces in Tamale.”

Was this peremptory order ever overturned or varied? Was it complied with? Did the transfer per se of the trial to Accra remove this order? Under what circumstances did other persons decide to grant the accused persons liberties that the court had not given?

These accused persons were not even on bail, which meant that they were supposed to be in custody, whether police or military. How on earth could these accused persons be allowed to live in their homes and be allowed to continue to work and earn a living, so that one of them would simply take a hike and not return?

When a person is arrested, he immediately becomes a ward of the state, and can only walk free if the police (or other arresting authority) grant him bail. When that person is subsequently charged and put before court, he immediately becomes a ward of the state again. That is why upon the first appearance, his lawyers will have to apply for bail. Unless the court grants bail, that person must return into custody. When an accused person is charged with murder, section 96 of the Criminal and Other Offences (Procedure) Act provides in mandatory terms that a court shall refuse to grant bail in a case of murder. The only instance where a person charged with murder might obtain bail is where his prosecution has been delayed unreasonably; then his lawyers might be successful in doing an article 14(4) application for bail. But it is clear that unless and until an accused person who has appeared before a court has been granted bail, he must be kept in custody.

There are therefore many questions that are begging for answers. Do we have a situation in Ghana where some accused persons are more ‘special’ than others? Why should some accused person be allowed all the liberties of the free, at a time when they had not been admitted to bail and the court had made a specific order relating to their confinement? Has the court’s order been treated with contempt? One of the Underlying Objects and purposes of the law of contempt is protect orderly administration of law. The due administration of justice requires no usurpation of the functions of the court. Thus the power to commit for contempt extends to disobedience to orders made by the court. Justice Mensah’s orders were clear. If someone has violated those orders, isn’t that person in contempt of court?

We cannot even say that this accused person has ‘jumped bail.’ There was simply no bail, and no bail means that the person should be kept in custody. How then can Ghanaians simply take this matter in our stride as if nothing has happened and then allow the military to feed us with changing stories? If it was the military hierarchy that decided to breach the court’s order, can we trust their claims of investigating the matter? Indeed, do we need another investigation? Is this not a proper case for the Attorney-General to commence contempt proceedings against the persons who violated the court order, so that they come to court and show why they should not be committed for acting in violation of a court order?

Conclusion

We must juxtapose the treatment of these military men to the treatment given by the same military to the Bawku Two. A specific court order directing the confinement custody of military men accused of murder is flouted by the military. But the same military arrests two ordinary men (who have not been charged with any offence), and subject them to torture and cruel and inhuman treatment.

The good people of this country must demand of the powers that be to call the military to order immediately. Our near-silence on these matters does violence to the word “Justice” in our national motto, which connotes fairness, impartiality and evenhandedness. We are 17 years into constitutional democracy. Let Justice be manifestly done, and let’s see if the heavens will fall.