Two senior legal brains have backed the Ashanti Regional branch of the Attorney General’s Department ( A-G’s)for the advice it gave on the case that led to the discharge of the eight members of the Delta Force in Kumasi. Mr Ace Anan Ankomah and Mr Martin Amidu contended that the AG’s Office did an excellent job because the work done by the police investigators was enough to conclude that the case had no legs to stand on.
They asked those criticising the Senior State Attorney in Kumasi to leave her alone because she acted professionally.
Sharing his opinion on the matter in an article, Mr Amidu wrote, “The Ashanti Regional Office of the A-G did an excellent job expected of professional prosecuting attorneys in setting forth the legal advice in such a way that anybody wishing to replicate the methodology to find out whether or not the conclusions are valid may do so.”
And in a Facebook post, Mr Ankomah wrote that it was not the job of the Attorney General to go investigating the matter and fishing for evidence. “That is the work of the police. If the police give you nothing, you can't do jack.”
The two lawyers based their arguments on legal positions.
Eight members of the Delta Force, a vigilante group associated with the governing New Patriotic Party (NPP), who were arrested and charged for allegedly aiding 13 members of the group to escape lawful custody in Kumasi, were discharged last Wednesday.
The Kumasi Circuit Court, presided over by Mrs Patricia Amponsah, discharged the eight following an advice from the A-G’s Office to the police to discontinue the case because there was no evidence to support the arrest and charges levelled against them.
When the case was called last Wednesday, the prosecutor, ACP Mr Okyere Darko, told the court that the A-G’s Department had asked that the charges be withdrawn for lack of evidence, and submitted the document detailing the reasons to the judge.
The eight members were arrested on April 10, 2017, when they allegedly stormed the Kumasi Metropolitan Assembly (KMA) Circuit Court to free 13 other members of the group who had been remanded in prison custody.
They were charged with "Disturbing of Court" under Section 223 of the Criminal Offences Act (Act 29 of 1960) and "Resisting Arrest and Rescuing" under Section 226 (1B) of the same Act.
At the first hearing of the case, counsel for the accused persons, Mr Laray Nimako, insisted that the eight were not part of those who allegedly freed the 13.
He argued that the eight were arrested at Fante New Town which was very far from the court where the 13 suspects were said to have been freed.
In his statement loaded in legal verbiage, Mr Amidu said: “As professional lawyers, representing the Attorney General, they were perfectly within their delegated authority under the Constitution and the laws of Ghana to have arrived at the conclusions they did based, as it were, on the docket presented to them by the Ghana Police Service/Criminal Investigations Department (CID).”
Forcefully driving home the point that the offences with which the suspects were charged were not those cases in which the A-G’s Office in Kumasi was obliged to refer dockets to the head office in Accra for concurrence before the issuance of legal advice to the police, Mr Amidu stated that: “The Ashanti Regional Office was, therefore, perfectly within the exercise of its prosecutorial discretion to deal with the case without further reference to the A-G Office in Accra.”
From personal experience, Mr Amidu, who had been with the A-G’s Office as a politician, said there was no way the Attorney General could have compelled the Chief State Attorney in Kumasi to change her legal opinion on the case docket.
“My experience and learning is that the regional offices of the A-G’s Department are by convention to be headed by Chief State Attorneys (or such other senior attorneys as are available having regard to the manpower situation of the department) who exercise and supervise the exercise of the powers of the Attorney General in the region. The prosecutorial powers of the Attorney General are of quasi-judicial nature exercisable in accordance with strict legal principles.”
“While the Attorney General may persuade a professional attorney in her department to change his or her view of the law and the evidence based on superior legal reasoning and persuasion, it is professional misconduct on the part of any Attorney General to compel an attorney to doctor his legal opinion to concur with that of the Attorney General. What any Attorney General can do when he or she disagrees with the opinion of her professional staff is to recall the docket from the attorney and assign it to another lawyer willing to agree with her or to take over the docket herself and prosecute it,” Mr Amidu wrote.
Cautioning the Attorney General to tread cautiously, Mr Amidu said: “I hope the Attorney General will act professionally as quasi-judicial officer in exercising the constitutional prosecutorial powers of the Republic by respecting the delegated powers given by her to her professional regional representatives before she finds herself overwhelmed by all the criminal dockets from all the regions seeking for her approval before finalisation.
Political angle dangerous
He emphasised that the political twists given to the case were dangerous for the country’s democracy and rule of law.
“The impression that the regional office of the Attorney General’s Department had to have recourse to the Attorney General simply because the suspects were alleged to be members of the New Patriotic Party (NPP) is dangerous for our democracy, the rule of law and the prosecutorial discretion delegated by the Attorney General to each of her prosecuting attorneys and, particularly, her regional representatives.
“The contention that because a suspected crime involves members of a political party in power, the Attorney General must for that reason alone personally see the docket before professional attorneys advise on it is discriminatory against other citizens. This is because political and other considerations may ultimately substitute themselves for legal considerations. National Democratic Congress (NDC) and NPP members must be subject to the same standards of prosecutorial decision making as any ordinary person suspected of the commission of crime,” Mr Amidu said.
Presumption of innocence
According to Mr Amidu, the advice given by the Ashanti Regional Office of the Attorney General demonstrated the importance of the presumption of innocence.
“Six of the eight alleged Delta Force members have stated that they are not members of the NPP and did not take part in the alleged crime. Two of the eight admitted that they were NPP members but they were not part of the group that committed the offences for which they were charged.”
“The complainant was a police officer who was not even present at the scene of the offence. The two police witnesses who made written statements could not identify any of the suspects as a participant in the crime. Is it the fault of the suspects that the police could not produce a better docket implicating them? Not at all!” the legal practitioner said.
“NDC minority is wrong”
He said it was wrong for the NDC to suggest that the AG’s Office should have presumed the suspects to be guilty of the offences, when the evidence on the ground pointed to the contrary.
“This is the very attitude of political interference in the constitutional duties of the Attorney General’s Office which I fought against during my tenure as the Attorney General under NDC Three. Professional attorneys in the Attorney General’s Department do not manufacture evidence; they act upon the facts and evidence on the police docket,” he said.
Touching on the NDC Minority’s call for the rearrest of the suspects, Mr Amidu averred that was unacceptable.
“Rearresting suspects who have contested their arrest and submitted themselves to the Republic to prove their guilt and against each of whom the Republic lacks evidence to prosecute will be inconsistent with and in contravention of the fundamental rights and freedoms of the citizen and accordingly unconstitutional.”
“What the NDC should be doing is to furnish the police with the evidence, including the video they have, to enable the police to build a better docket for prosecution instead of the unconstitutional instruction to rearrest citizens who have been discharged by a court of law. The invitation to the President, a former Attorney-General, to interfere in criminal prosecutions is capricious and unbecoming of the ideals of NDC,” Mr Amidu said.
For now, he said, the suspects had only been discharged, adding that, “should the Attorney General be of the view that because the suspects are alleged to be NPP members, she can find the evidence to prosecute them in spite of the available docket, she has a right to call for the docket and give further directives on them”.
“The Minority NDC in Parliament is acting politically and unconstitutionally in its complaints on this matter. The Judiciary understands the presumption of innocence and the fact that only suspects against whom evidence is available may be prosecuted,” he stated.
Lawyer Ankomah argues
Mr Ankomah, in his Facebook post, said he was confident that he would disappoint many people with his position on the Delta 8 case... But my head must speak on this matter, and not my heart,” he said.
Delving into his repertoire of legal knowledge, he wrote, “The reality is that the law doesn't really care about your truth. The law only cares about what you can prove. If what you can prove leads us to the truth, that would be perfect. But for the most part, your real truth alone may not win the day if it isn't backed by evidence. Evidence, even false evidence, beats the truth if truth has no evidence.”
He indicated that the case was built from a weak position and as such the A-G’s Office was on point in giving that advice.
“Trying a criminal case isn't a walk in the park. In civil matters, the case is proved based on the ‘preponderance of evidence’, which simply means whose evidence has the greater weight? Who has the more convincing evidence? Whose evidence is probably accurate or the truth?”
“But in a criminal trial, the standard of proof is way higher, way bigger and way heavier: beyond reasonable doubt. This is based on the strong presumption that the accused is innocent until proved guilty," he said.
Prosecution must meet standard
Mr Ankomah said the prosecution's evidence must always meet standard by removing all doubts that the accused committed the crime.
“A case is only as good as the evidence that backs it. So let the police get back on the beat and bring something that ties some people to the offence. Till then, leave the A-G and the Senior State Attorney alone,” Mr Ankomah stated.