SCANDALIZING THE COURT IS DANGEROUS FOR GHANA’S DEMOCRACY
SCANDALIZING THE COURT BY COHORTS OF ANTI-CORRUPTION ENTERPRENEURS AS A RESULT OF THE ANAS A. ANAS v KENNEDY AGYEPONG JUDGMENT IS DANGEROUS FOR GHANA’S DEMOCRACY.
BY MARTIN A. B. K. AMIDU
INTRODUCTION
The High Court (General Jurisdiction 2) Accra, on 15 March 2023 after hearing the defamation action brought by Anas A. Anas against Kennedy Agyepong and considering the evidence adduced at the trial concluded that:
“I state in conclusion, that whereas all the statements founded on exhibits KOA1, KOA2, KOA3 and KOA4 were truthful and factual, thereby sustaining defendant’s defence of justification and fair comment, the statements in plaintiff’s exhibit C; though capable of defamatory meanings, were not proven to have actually defamed the plaintiff. I found the claims of plaintiff merit-less. It is hereby dismissed.”
ANAS A. ANAS AS THE PLAINTIFF
Anas A. Anas the Plaintiff dabbles both as a lawyer and an “internationally acclaimed investigative journalist”. Anas A. Anas knowingly and voluntarily caused his action to be commenced by one Listowell Bukarson on behalf of Anas A. Anas as the plaintiff. This was by virtue of a power of attorney authorizing him to bring the action in the name of the plaintiff, Anas A. Anas on 18 June 2018 for twenty-five million Ghana cedis (GHS25million) damages. The writ of summons was amended on 20 November 2018 after the defendant had filed his statement of defence on 13 November 2018. The Plaintiff then replied on 21 January 2019 to close the pleadings.
The filing of the action through an attorney as an agent of a principal is not controversial and is enabled by law. Any act in any court required or authorized by the law to be made or done by a party in such court may be done by an authorized agent. The question is whether the attorney can testify on behalf of the plaintiff on matters which are not within his personal knowledge.
Did the attorney see or witness the transactions alleged? As far as the requirement that he should testify about what he actually did see or heard is concerned, the attorney could not testify about what the plaintiff himself witnessed or heard. The rule against admissibility of hearsay evidence is statutory. Anas A. Anas, the plaintiff put himself in a situation of being incapable of giving relevant and primary evidence in person and be cross-examined because he lives in the fear of his own shadow as an anti-corruption entrepreneur and not as a genuine anti-corruption crusader. Anas A. Anas thus lost the only opportunity to publicly tell the court his version of the facts within his personal knowledge and to be cross-examined to establish his credibility. Genuine anti-corruption crusaders do not hide their faces behind masks.
READING AND EVALUATING THE JUDGMENT
I have painstakingly read and re-read the 64-page judgment of the trial High Court in ANAS v AGYEPONG using all the knowledge, experience, and arsenals in the legal armory I have acquired over the past upwards of four and half decades (45 years) when I held myself out as a private legal practitioner, a public officer serving in various capacities, including Deputy Attorney General, Minister of the Interior, and Attorney General, amongst others. I declined for personal reasons my proposed elevation as a justice to the Supreme Court in 1999. I am now retired and hold no licence to practice law.
But I say that while one may disagree with the judgment or aspects of the judgment of the learned trial judge in the case, no rational person learned in the law can fault the trial judge for the transparent and accountable manner he went about stating the facts, the issues, the burden of proof and other methodological procedure that enabled him to arrive at his evaluation of the evidence and the conclusions upon his appreciation and understanding of the evidence that unfolded before him at the trial.
I make these statements based solely upon the content of the judgment which I downloaded from open source when the media published it. I read the judgment without any previous bank of knowledge about Mr. Justice Eric Baah, JA, sitting as an additional High Court Judge. I have never known or remember ever meeting him, and to the best of my recollection it was the first time I was hearing about him or reading a judgment authored by him.
In my candid view after reading the judgment over and over again, I was left in no doubt that the learned trial judge had performed his judicial duty as a trial judge would do based on his appreciation of the evidence before him and the law as he elucidated and understood it. The trial judge exhibited a consciousness of the fact that generally in a civil trial, the burden of proof is on the preponderance of probabilities.
The judge underscored the evidential requirement that where, however, a criminal act is the issue in a civil trial, the burden of persuasion requires proof beyond reasonable doubt, though the sufficiency of the evidence required to attain that standard would depend, to a large extent, on the gravity of that particular offence. The trial judge also exhibited a consciousness of the fact that he was not sitting as a criminal trial court trying crimes but as a civil court trying a case of defamation which had in issue allegations of criminal act(s).
The trial judge through the thoroughness of his analysis and legal reasoning demonstrated in his judgment that he was not convicting any of the parties to the action of any criminal offence or having the power to sentence any of them. The judge reminded himself of his duty to evaluate the evidence, the facts, the law and make findings on the balance of probabilities whether the plaintiff had made out a case of defamation or had failed to do so as a result of the defence put forward by the defendant.
In performing his duty as a trial civil court for the tortious offence of defamation he made findings that there was on the balance of probabilities forgery, blackmailing, bribery and corruption, an alleged murder, etcetera, justifiably made by the defendant against the plaintiff. But these findings did not constitute criminal convictions for which the losing party may be sentenced to jail. A trial court or appellate court commits no offence in making such findings and giving judgment based upon those findings in civil trials and civil appeals.
The rules of evidence make it clear in Ghana that in civil trials the availability of a judgment convicting a person for a crime at a criminal trial does not even relieve the civil trial judge from satisfying himself on the evidential burden in the civil trial where a criminal act is in issue. Section 127(1) of Ghana’s Evidence Decree, 1975 (Act 323) and the accompanying Commentary throws light on this matter.
POLITICAL ENVIRONMENT AND COHORT SCANDALIZATION OF THE COURT
After reading the judgement of the trial court several times, I decided to research how the judgment was perceived in the politicized environment of Ghana of today where even truth is turned on its head by paid political communicators, partisan political elites, and politicians seeking raw political power with no iota of the basic democratic morality or values premised on the interest of the ordinary citizen.
Anas A. Anas’s Action and Reaction to Judgment
Anas A. Anas was not compelled by the judiciary to bring an action for defamation before any level of the court system against Kennedy Agyepong. He consciously and voluntarily chose to do so in the expectation that he may prevail at the trial. Any party losing in the trial court has a right of appeal if he formed the view that there were appealable grounds against the decision of the trial court. The right of appeal is exercisable by both parties up to the Supreme Court provided they guide against abusing the process of the court with spurious actions and appeals.
But a losing party or his cohorts who impute partiality or impropriety to the judge or court commit the offence of scandalizing the trial judge, the court, and the administration of justice as an institution and are in contempt of Court whether or not the losing party subsequently files an appeal against the judgment. The decision of Supreme Court in the case of REPUBLIC v MENSA-BONSU & OTHERS, EX PARTE ATTORNEY-GENERAL [1995-96] 1 GLR 377 governs the situation.
Anas A. Anas, a lawyer, and the founding partner in Cromwell Gray LLP with William Agyebeng, now the Special Prosecutor, and his cohorts appeared to assume that when a trial goes against one’s expectations, the trial judge must be vilified and attacked as an excuse for filing an appeal. The plaintiff was reported to have said, amongst other things, about the judgment that went against him that:
“My team of lawyers and I have carefully studied the judgement delivered by the court and we are unanimous that the judge made an overreach and descended into the arena and made a criminal pronouncement about me as if I was standing a criminal trial.”
The civil action for defamation which Anas A. Anas voluntarily brought before the trial court involved criminal acts which were the issue in a civil trial and the trial judge was bound to make determinations on them in the civil trial. How could the trial judge do that without using the rules of evidence on the burden of proof which any trial court is bound to consider in making its findings on the evidence?
The impression that by performing his judicial functions in exercise of the judicial power guaranteed under the 1992 Constitution the trial judge had descended into the arena of conflict is an attack on the independence and impartiality of the judge and constitutes a scurrilous abuse of the court. One who has confidence in his cause will quietly go on appeal without making any political fussy to save face.
Reaction from the Media Foundation for West Africa (MFWA) & The Fourth Estate
On the same day, another investigative journalist who has received the Anas Aremeyaw Anas investigative journalist award from the Press Foundation and is associated or works under a project of the Media Foundation for West Africa (MFWA), heaped scandalous abuse on the trial judge, the court, and the judiciary as an institution. He was quoted to have said, inter alia, that:
“The judge said what Anas does is “investigative terrorism” and not investigative journalism. Having gone through the judgment, however, one won’t be an inch away from the truth to conclude that what happened is judicial terrorism.”
The Executive Director of the MFWA in an interview on JoyNews’ Newsfile on Saturday, 18 March 2021 (who works with the journalist who scandalized the trial judge, court and the judiciary as engaged in “judicial terrorism”) was reported to have used words disparaging and constituting scurrilous abuse of the court and the judiciary as an institution. He was quoted on open source as saying that: ‘the Judges’ decision “went beyond probing whether what Kennedy Agyapong said was true, or not true, justifiable, fair and whatever, to actually himself defaming the character of Anas.”’
It is an abuse of the independence guaranteed the media under the 1992 Constitution to accuse a judge sitting as a judge in exercise of his judicial functions and powers of defaming the character of a plaintiff who voluntarily submitted himself to the jurisdiction of the court and gave evidence to the court through an agent-attorney. The imputation of partiality and impropriety to the court, the administration of justice, and the trial judge’s character constitutes contempt of scandalizing the judge and the administration of justice. As Mrs. Justice A. Dordzie, J (as she then was) decided in the REPUBLIC v GENERAL PORTFOLIO & 3 OTHERS, Suit No. MISC. 932/96, High Court, Accra, 9 August 1996 (Unreported), the slightest suggestion of bias will be contempt and thus the defence of fair comment is not recognized in contempt scandalizing the court. It is the last thing one would have expected from the MFWA.
CDD-Ghana’s Endorsement of Subterfuge and other pending matters
On the same JoyNews’ Newsfile on Saturday, 18 March 2023, Dr. Pumpuni Asante of CDD-Ghana was reportedly quoted to have said that there are many cases that demand that the investigators resort to deception in order to bring the issue to the attention of the public for thorough investigations to be conducted in order to punish the perpetrators. Dr Asante is reported to have justified the unethical use of subterfuge by the executive branch, and private and unlicensed covert investigators in the following words:
“… there are many issues around corruption that you have to use subterfuge to get to the matter. … And often when it happens, it will lead to an investigation—a substantive investigation—like in the FIFA case, it led to a substantive investigation and then it helps society to address these problems in society,”
Dr. Pumpuni Asante’s disdain for investigatory and prosecutorial ethics which is the foundation of constitutionalism, democracy and the rule of law that upholds the dignity of the citizen from covert state and private unlicensed investigatory overreach for the preservation of the right to be presumed innocent and the right against self-incrimination only confirms my earlier conclusions about what I referred to in my article, “The Fight Against Corruption Requires A High Degree of Crusading Integrity And Not Entrepreneurship” of 16 September 2022 on the supposed doyen of the NGO’s, CDD-Ghana.
CDD-Ghana is the supposed doyen of the entrepreneurial NGOs in Ghana because as reported in a Modern Ghana article, “Corruption Watch Ghana is an initiative by the Ghana Center for Democratic Development (CDD-Ghana) and a coalition of anti-corruption civil society organizations including, Ghana Integrity Initiative (GII), Ghana Anti- Corruption Coalition (GACC), and Africa Center for International Law and Accountability (ACILA)…”
I came to the considered conclusion in my article of 16 September 2022 on the high degree of crusading integrity required to fight corruption and not entrepreneurship that:
“The same influence peddling or trading of influence can be seen on the website of the OSP where two of the leading foreign influenced NGOs have become integral partners of an independent OSP: Afrobarometer-Center for Democracy and Development (CDD), and Ghana Integrity Initiative (GII) - without the slightest shame of any conflict of interest in rigging the elections to Chairpersonship of the governing council of the OSP and violating Section 22 of Act 959 which forbids the OSP from accepting any funds directly or indirectly from anybody except from or through the Ministry of Finance.
This partnership clearly negates the independence of the OSP and now enhances the ability of the NGOs to use influence peddling or trading of influence to source funds, grants and donations from foreign sources first to meet their administrative expenses and salaries, and secondly to interfere in the independent operations of the OSP.”
It is Dr. Pumpuni Asante and CDD-Ghana’s unethical approach to hallowed law enforcement and prosecutorial rules and conventions that has led him to trivialize a considered judgment of a court of competent jurisdiction in Ghana by justifying subterfuge in investigations which the trial court found as being inconsistent with the rule of law and justice in the defamation claim by the plaintiff.
I am not surprised by the attitude of CDD-Ghana and its Corruption Watch Ghana initiative because one of their close associates was brave enough to confess to the Deputy Special Prosecutor and I when I was the Special Prosecutor that they had funded a journalist to undertake covert investigation of a public official. The associate told us that, thereafter the associate negotiated with the Minister for National Security to persuade the President to refer the resultant covert investigation to the Office of the Special Prosecutor (OSP) for further investigation and prosecution.
When the Government had done the associate’s bidding, the anti-corruption coalition petitioned the Commission for Human Rights and Administrative Justice as well. The CDD-Ghana had gotten the head of its close associate unto the OSP without ever stopping to think of how unethical it was to involve the OSP as an independent anti-corruption agency in a covert investigation funded by one of its minions on the OSP governing board.
The conflict of interest involved in the whole funded “subterfuge” operation by the CDD-Ghana’s associate tainted the independent investigatory and prosecutorial discretion of the OSP. I found it unconstitutional and unethical as a former Deputy Attorney General and Attorney General to have exercised any prosecutorial discretion in the referral by the Presidency obtained through blackmail before I resigned as the Special Prosecutor. These are the very anti-corruption civil society organizations who are the leading foreign funded and influential NGOs in Ghana now constituting integral partners of a supposedly independent OSP.
The journalist for hire or for sale who was funded for the covert operations has received multiple year after year awards from this associate of the CDD-Ghana without any disclosure of the hiring or buying fees paid to the journalist for his entrepreneurial services as an investigative journalist. The audio and video materials admitting the funding used to hire or buy the investigative journalist is available on open source for those who care to research it. The reader should only make sure he accesses the full original audios and videos of the interviews and not the subsequent edited ones also now easily available on open source.
Political reaction to the judgment at UPSA in lecture on financing political campaigns
I also found it amazing that the judgment of the trial court became an instrument of cheap politicking on 22 March 2023 at a lecture on financing political campaigns, at the UPSA auditorium. The august Speaker, who is also a contender for one of the political party’s flagbearership position at the coming party primaries was quoted as having said that:
“God willing, in 2025, when I have the opportunity to be the President of Ghana who has been a President before, I will come with priceless experience to fix our broken nation. I want us to build the Ghana we want together by writing – not footnotes, not pages but – chapters in the anticorruption history of our dear country Ghana. We must also uphold human rights, including freedom of expression and not be describing some journalists as terrorists.” (Emphasis supplied).
The problem I have with the insertion of the above last sentence as a cheap innuendo and malicious castigation of the court and the judge in the Speaker’s speech is that Nana Addo Dankwa Akufo-Addo excelled and exhibited more sophistication in deceiving Ghanaians for their votes at the 2016 elections only to throw those values and promises to the wind as President of Ghana.
My second issue was whether the former Excellency even found time to read the trial judge’s 64 -page judgment in which the judge reminded himself in Section H, at page 11 to 13 of his considered judgment on “H. Defamation and Freedom of Expression.” As part of the trial judge’s analysis of freedom of expression versus the right to human dignity and its defence through the law of defamation, the court, amongst other things, at page 13 paragraph 2 stated that:
“The right to free speech and dignity of the individual are two competing constitutionally guaranteed values, none of which is superior to the other…In contest in this case is the defendant’s right to free speech and expression, and the plaintiff’s right to the inviolability of his dignity and reputation…The law of defamation however gives this court jurisdiction to umpire a dispute between an individual’s right to dignity, and the right to free speech and expression, as this case presents.”
I shudder to think that the august Speaker at the UPSA whose main topic had to do with financing political campaigns was just copying from Nana Akufo Addo’s 2015-2016 over flogged psychological deception play book just to attain political power.
My third concern was the deceptive allegation that the trial judge tagged journalist as terrorists without reference to the context of the findings and decisions contained in the trial court’s judgment. The judgment states upon the available evidence at pages 60 to 62 of the judgment that:
‘In his evidence in chief, defendant contended that the meeting in exhibit KOA4, was to plot to entrap the Prime Minister of Ivory Coast and the President of Ghana. The conversations in exhibits KOA3 and KOA4 appear very much to confirm that claim. …As the fake Sheik stated in exhibit KOA3 “they planned it very well.”
The President and the Prime Minister who plaintiff and his team targeted are the leaders of their nations. They embody the soul and spirit of the nations. ….However, a pre-emptily, unjustified attacks on their credibility, unprovoked by any credible suspicion of a specific act of corruption engaged in or about to be engaged in by them, such as drawing them into a trap so as to be caught in a contrived corruption set up, as was alleged by the defendant, and backed by exhibits KOA4, was unwarranted and devious. It should be understood that as officers caught by plaintiff in his investigations have lost their jobs, an entrapped president may be compelled to resign out of shame or public pressure. That means, the plaintiff through his investigative antics can cause the removal of a president, and thereby upend the mandate given to him at the elections. That is not investigative journalism. It is investigative terrorism. It is exercise of indirect political power under the cloak of journalism (page 60).
The serious aspect is that political, enemies of a president who could not stand him at an election, may hire the plaintiff to entrap him to undermine his presidency. Enemies of a state can also hire him just to destroy the political hierarchy.
Xxxx
In all honesty, the plot by plaintiff and his group in exhibit KOA4 has nothing to do with journalism. It was a scheme for grabbing power by the back door and satisfying plaintiff’s insatiable taste for power, publicity, fame, awards, and rewards. Since the president is an embodiment of the soul of the nation, any unwarranted plot out of nothing to entrap him to destroy his reputation and undermine his authority is reproachable. The attacks of defendant on plaintiff on that ground deserves commendation and not condemnation (page 61).
I hold in respect of exhibits KOA3 and KOA4, that any statements based on them were justified and passed the test of fair comment. In the result, the court finds established the defence of justification and fair comment in relation to the statements of defendant based on exhibits KOA1, KOA2, KOA3 and KOA4. Since those statements were justified, they could not have actually defamed the plaintiff (pages 62).’
I will rest my comments and criticism about the unwarranted political intervention by the former President without stirring further the hornets’ nest with other observations on the integrity of being an honest leader and a return of a Christ the messiah operating on my mind.
Judgment based on evaluation of Exhibits, facts and evidence permissible by law
The trial judge’s findings and conclusions are derived from the evidence as he evaluated them from “Exhibits KOA1, KOA2, KOA3 and KOA4”. I hold no brief for his appreciation of the facts, the evidence and conclusions on the law. But he is empowered by the 1992 Constitution to perform his judicial functions and exercise the judicial power entrusted to him as a superior court judge. The appellate process is clearly provided for in the Constitution and laws of Ghana to ensure the rule of law and not the rule of public opinion for the attainment of raw abusive political power.
RESPONSIBILITY OF ANTI-CORRUPTION CRUSADERS AND POLITICAL LEADERS
I hold the view that those who aspire to genuinely crusade against corruption as investigative journalists, and to lead this nation in the exercise of the executive power ought to show an example in upholding the integrity of the judicial process instead lending their voices to the cohorts of a losing party to scandalize and bring the administration of justice into disrepute. It should also be remembered that there are abundant documentary and other evidence of who created and facilitated Anas A. Anas’s rise as an anti-corruption entrepreneur and a covert political agent with unaccountable privileges. The OSP investigated these facts during my tenure in the pending Charles Bissue corruption investigation case reported to the OSP by letter under the signature of Kissi Agyebeng, who was then Anas A. Anas’ law firm partner at Cromwell Gray LLP. Kissi Agyebeng is now the Special Prosecutor.
Anti-corruption as an endemic profitable enterprise for covert property acquisitions
The fight against corruption has become the darling child of the most corrupt members of civil society organizations who see anti-corruption as a profitable enterprise which protects and removes every suspicion from those entrepreneurs of being endemically corrupt themselves. It is easy to squander donor funds under the guise of fighting corruption without raising an eyebrow. I wish one could make an inventory of the properties acquired by some of the management of the so called entrepreneurial anti-corruption civil society organizations and compare them to the acquisitions made by some honest public officers and the honest political office holder after several years of long service to mother Ghana.
CORRUPT NON-DISCLOSURES OF BENEFICIAL INTERESTS AND CONCLUSIONS
As I went about studying, examining, and analyzing the 64-page judgment in ANAS A. ANAS v KENNEDY AGYEPONG and researching the comments against the judgment I came across the fact that some of the critics and participants in the discourse on the judgment including JoyNews’ Newsfile were recipients of the Anas Award for Best Journalist set up by The Press Foundation. The Press Foundation, from open source material, was established by Anas A. Anas’s agent and attorney in the GHS25million defamation case, Listowell Bukarson, who commenced the action on Anas’ behalf as the plaintiff.
These recipients of the Anas Award for Best Journalist have written, conducted radio and TV interviews scurrilously abusing and scandalizing the court without disclosing their interest and stake in the fortunes of Anas. A. Anas as the plaintiff or in his agent in the court who conferred the awards upon them in Kumasi and Bolgatanga through the Press Foundation. This is evidence of malicious criticism of the court and the trial judge.
Presenting oneself to the public as an honest, impartial, and independent broker in maliciously criticizing the judgment of the court and scandalizing the court while being a beneficiary of an award set up in the suppose honour of the losing plaintiff is unpardonable corruption in the broadest and unethical sense. Courting and creating a perception of goodwill and integrity from the innocent public through subterfuge is a worse form of corruption also in a broadest and immoral sense. It is professionally unethical and corrupt, whichever profession or professions one belongs to. Ghana shall rise again one day in probity, transparency, and accountability under the 1992 Constitution.
Martin A. B. K. Amidu
29 March 2023