Are we operating a ‘guilty with explanation’ system of justice or what?

In the colonial days (that is, before 1957) there was a dual system of justice in Ghana.

Two types of law were being administered to our populace. One was called the “Native Authority” system, and the other was known as the court’s section of administration by the Central Government (or some such nomenclature!)

Disputes relating to ‘small’ matters bringing conflicts into everyday life were adjudicated by a graduated apparatus run by the chiefs of a “state” or locality and their elders.

Serious crimes, on the other hand, were referred initially to a magistrate, and then went higher up in stages till it reached an apex court then called the “West African Court of Appeal” (WACA).

However, WACA was not quite supreme:  in really very serious/complicated cases, the “Privy Council” or Judicial Committee of the British House of Lords (seated in London) was the last resort. Just imagine how costly that process was!

Now, native authority courts were largely expected to interpret and apply only customary law. A man was no longer providing maintenance for the woman he’d been living with for the past ten years. He was entitled to divorce her after laying specific charges against her before her family elders or the chief. Had he done so? If not, then case dismissed. And that sort of thing.

It was when the ordinary person (usually illiterate) came up before a magistrate who applied British law that confusion arose. In British law, the first crucial question an accused person was asked, was, “Guilty or not guilty?”

How as a man with little knowledge of British law (if any) to answer this? He might have physically assaulted the person who had brought a complaint against him. But why did he do that? Would admitting that he had assaulted the complainant place him in jeopardy?

If such an accused person thought he was wrong to have assaulted the complainant but did so after he had suffered undue provocation, he might answer the guilty plea question with an incongruous formula that was enunciated as ‘GUILTY WITH EXPLANATION”!

But this plea was unknown in British law and caused amusement to British-trained lawyers (especially if they were new to the Gold Coast).

Admitting to having committed a crime before the particulars had been recounted in court was “madness”, in the British adversarial system of justice. But only British-trained lawyers knew this, and many earned a good living by advising culprits to plead “NOT GUILTY” first, before arguing to “explain” their actions with well-chosen “sweet words”. (In Twi, when you have a good case, they say: “w’as3m y3 d3!)

The ambulance importation case before our courts which everyone is currently talking about, instructs all of us that our judicial system is sometimes dangerous, in the sense that it creates contradictions that create conflict in our minds.

Our Attorney-General, it appears, has allowed himself to be trapped in a honeycomb: not one inhabited by pretty women, but by crafty political operatives.

These operatives know that modern mobile phones can be turned into recording devices by a deft flick on the instrument.

They also know that an interview that occurs in the home of a Justice of our Supreme Court cannot be easily denied to a judge who is the junior of the Supreme Court judge. All sorts of moral and professional issues would arise if the Supreme Court judge was subpoenaed to give evidence in the case.

Now, anyone who asks someone else to go to court and lie for whatever purpose, has incited that person to commit “perjury.” And perjury is a criminal offence.

These comlex irregularities have been – basically – accepted by the judge.  And she is clearly embarrassed by them.

But she sought to overcome the difficulties she faces in a strange manner: instead of the judge making a finding that the Attorney-General had committed an offence of some sort – suborning or attempting to suborn a witness, for example – she advised the Attorney-General to “recuse” himself from the case!

Now comes the question: did she “advise” the Attorney-General to do that because he had committed an offence, or what? Can a judge “advise” a lawyer on how he should view his continued appearance in a case? Is that not tantamount to the judiciary bringing pressure on the legal profession?

It is not for laymen like yours truly to delve too deeply into this Obviously the judge gave her advice to the AG in the spirit of saving everyone from Embarrassment. But the British system of law draws strict lines between the prosecution and the bench. All we outsiders can say is; please, legal officers, be true to the rules that govern your calling. If you confuse our society, anarchy beckons!.

Writer: Cameron Duodo