Entrapment is not for Kennedy to decide

I have been following with keen interest the trends and the dimensions of public discourse since the news of yet to be aired Anas video hit the airwaves. The reaction has been a mixture of joy and panic depending on where ones’ interest lies.

Many Ghanaians have over the years cried over the exponential levels of corruption, naked thievery and cronyism in football circles, a terrible situation that has ultimately forced a lot of football enthusiasts including myself to swap our football allegiance for European teams at the expense of local clubs.

Football in Ghana over the years has been under a terrible management of a corrupt person who has succeeded in surrounding himself with bunch of greedy sycophants who care less about the interest of the ordinary football supporter.

It’s no surprise that the very moment the news hit town that, investigative journalist, Anas Aremeyaw Anas has concluded his long awaited undercover investigation series on Ghana football, majority of Ghanaians jumped to the ceiling in celebration with the hope that finally, the extinction of tenure of a single greedy man who has, all these years, held Ghana football at a gunpoint would crumble under is own feet.

As the events unfold, a new twist to Anas’ sting operation has surfaced, Kennedy Agyapong has started his usual campaign of empty threats and unjustifiable accusations on Anas’ person for no apparent reason.

Some of his allegations have no intellectual credibility and are not only spurious but bogus as well. His uter failure to substantiate any of his hollow claims against Anas put him ahead of everyone in the league of risible comic figures in the current political dispensation.

This article seeks to address the major concerns raised by some critics about Anas’ methodology or his modus operandi which many people including Kennedy Agyapong have vehemently attacked, the entrapment tactics.

I believe Kennedy Agyapong and several others of his kind who hold similar impression about Anas’ modus operandi are not helping the discussion at all, entrapment as a legal subject can only be determined by the court not a confused MP who expert contrition from anyone except himself.

At this point Ghanaians are furious about the unkempt advances corruption has made into football circles and in government and are therefore following with keen concern the outcome of this filthy scandal that captures the president and his vice so any attempt by anyone to sway public focus with such useless and spurious claims will be vehemently and fiercely resisted by all.

My single convictions for buying into Anas’ method is simple, I believe extraordinary situation requires extraordinary approach therefore wicked and corrupt machinations can only be unraveled by using deceptive tactics to drag evil men out of their shells.

In the States such deceptive tactics are often employed by journalists and FBI operatives to unravel clandestine operations which is very difficult to track using the normal line of investigation. It’s not unusual to test the integrity of men to authenticate their level of commitment to the affairs of state by resorting to deceptive tactics.

The logic and common sense argument here is that, a man with integrity and values, no amount of persuasions can shake the very foundations of his moral integrity.

Kennedy Agyapong is only making noise, talking about entrapment, a subject he has no jurisdiction to determine aside the court.

After gathering his incriminating evidence, persons indicted by Anas will be offered that luxury to challenge at the court of competent jurisdiction if indeed the method used actually amount to entrapment.

In criminal law entrapment is a tricky and a controversial subject to establish, renowned courts in the States have had their difficulty as well.

In the States, many dubious investigative tactics are perfectly acceptable under the current parameters of the law. The 1992 Supreme Court ruling in Jacobson v. United States — as long as law enforcement or undercover journalist may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute, defendants will have a hell day in court to prove a case of entrapment.

In the case of Jacobson v United States, the Supreme Court held that when investigating certain criminal behavior, police may lawfully use a wide array of undercover techniques that, although deceptive, do not legally constitute entrapment.

Entrapment is defined, in criminal law, as an affirmative defense (one in which the defendant has the burden of proof) which excuses a criminal defendant from liability for crimes proved to have been induced by certain governmental persuasion or deceit. In considering entrapment defenses, courts have deliberated four questions. Their answers to these questions determine in a particular case whether an entrapment defense is relevant and can exonerate the defendant.

The first consideration has to do with does law enforcement or investigative journalist need reasonable suspicion before targeting the accused in an undercover investigation?

The answer is no, there’s no constitutional right to be free from criminal investigations and the fact that there was not prior suspicions before the initiation of criminal investigations would not bar the conviction of those who rise to its bait.

Second consideration has to do with evidence of inducement. so, a defendant cannot be exonerated of a crime on entrapment grounds merely because he or she can prove that police had no reason whatsoever to suspect even the slightest of criminal inclinations. What he must prove is that he was induced by police or journalist to commit the crime. This leads us to the second question: What constitutes inducement?

Undercover police officer or journalist merely approaching a defendant and requesting that he commit a crime does not. To claim inducement, a defendant must prove he was unduly persuaded, threatened, coerced, harassed, or offered pleas based on sympathy or friendship by police. A defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense.

A good example is the case United States v. Young at the Us Supreme Court.

Another critical issue Courts usually require that a defendant go further and prove that he or she was not predisposed to commit the crime.

Evidence of inducement and predisposition are almost similar but there is a primary distinction, though, between the two: Inducement focuses on the government’s or the undercover operative’s conduct, while predisposition focuses on the defendant’s actions and statements.

Predisposition is not solely based on whether a defendant has previously engaged in criminal activity. Predisposition may be established merely by showing the defendant’s desire to make a profit, eagerness to participate in criminal activity, or quick response to inducement offer.

Thus, even in circumstances where there was no reasonable suspicion to initiate an investigation where the defendant has proven illicit tactics of a journalist inducement, and where there is no record or suspicion of criminal activity in the defendant’s past, an entrapment defense may still fail if the defendant engaged in the induced activity for profit, monetary or otherwise, or did not demonstrate marked reluctance.

The very last consideration is a doctrine called “the outrageous government conduct defense”. It determines that, although proof of predisposition to commit a crime bars application of the entrapment defense, “Fundamental fairness will not permit a defendant to be convicted of a crime in which investigative journalist or police conduct is deemed `outrageous.’”

In very rare and limited circumstances, this defense exonerates a defendant from criminal liability for crimes committed even when predisposition has been established.

The above explanation gives a clear perspective on who determines what entrapment constitutes, I therefore urge Kennedy Agyapong and those of his kind wearing those medieval impression and who have difficulty in appreciating the depth of sting operations by Anas’ to head to court and put to test his methods and stop the media noise and insults because to us Ghanaians, the radical wave of corruption in Ghana requires similar radical approach to keep track and therefore Anas remains our hero.

Onebody cares about Anas’ identity, all we want his he does the job that serves public interest, he can be the devil, no one cares so Kennedy should give us a break. If indeed he has any evidence that Anas procured his properties through proceeds from criminal activities, he should go to court or shut up.

The conviction those of us on the street buy from all these unfolding development is the fact that even if a possible case of criminal prosecution against Kwesi Nyantakyi falls flat at the court on the basis of constitutional technicalities, we will be satisfied with the administrative value of this investigation and the possible shake up in the management of football in Ghana, again it will also confirm the wild held perception of men without honour and credibility managing football in Ghana, men with no integrity, no morals and no intellect who employ intimidations and influence peddling to remain relevant in their own eyes therefore all Ghanaians must collectively rise and drive Kwasi Myantakyi and his team of corrupt brigades out and save Ghana football from further destruction. God bless our homeland Ghana. The bible is my witness.