Tsatsu Tsikta: The Legal Albatross

(Part 1)

On principle, no accused person should ever be confronted with the circumstances surrounding Mrs. Justice Abban’s conviction of Mr. Tsikata on June 18, 2008. It is difficult to justify what Abban did on that day. I am not surprised many persons, including the former president of the Ghana Bar Association, Nii Osa Mills, after reading the court transcripts of that day, could not but conclude Mr. Tsikata didn’t get a fair trial. Before Nii Osa Mills added his voice to comments in a case that will in due course rank worse than the infamous case of Re: Akoto(1960),many persons including academics, whose integrity we have no reason to impugn, have severely criticized the judgment of Justice Abban. This case sets a bad precedent, and we better show our disappointment now before some legal opportunist of a judge in future sears our conscience by following the illogic in that case. Tsatsu’s case is a difficult one although the legal principles involved are pretty straight-forward. Prosecutorial ineptitude and the politicization of the case have made it complicated. It has become a surrogate for other battles: political ideology, vengeance-seeking, esteem-preservation, judicial face-saving gymnastics and, of course, judicial power-politics. Hard cases, they say, make bad law, and there have been lots of bad law in almost all the Tsatsu Cases. Some of the personalities involved in the case will forever have their legacy singed, if not irrecoverably tainted. This is what judges should always guard against; years of hard-work and good reputation can be washed away by the sea of judicial scandal that one case, and only one case, generates.

When some people speak in favor of the propriety of what happened on that day, and how the Tsatsu cases have generally been conducted, they tend to be motivated by some of these behind-the-scene battles; and this is what has made dispassionate analysis of the case on purely democracy-rule-of-law values, problematic. There may be so many angles to a case. Yet in Tsatsu’s case the legal-democratic-rule-of-law angle has been superior to all others. Those who have attempted to explain away what happened often reveal their deficient knowledge in rule of law standards. Bear with me as I set out reasons why I think Tsatsu never got a fair trial. I don’t speculate on the facts; I collate information that is largely available in the public domain. In the second part of this piece (to be published separately) I will comment on the sub-judice rule (part of the law of contempt) which is being used by part of the self-serving elite to muzzle and browbeat us into submission.

Let’s recall some of the facts that make this case an albatross. 1. A judge tells an accused person in open court she won’t deliver her judgment until she hears from the Supreme Court as to whether the International Finance Corporation [IFC] should be called upon to testify on behalf of the accused person. The accused person believes in this promise or order. He does not(and he could have if the promise had not been made) bring a formal application for stay of proceeding to stop the judge from proceeding with the case till after the SC has ruled on the immunity of the IFC. The judge then goes contrary to this promise, and without giving any prior notice to the accused person that she won’t await the judgment of the SC, she reads her judgment convicting the accused person. By all principles of ethics, this is unacceptable. An accused person is made to believe in a state of facts, and when he relies on it, he gets shortchanged. Not good enough!

2. When the accused persons draws the judge’s attention to the fact she has said she won’t give her judgment till she has heard from the Supreme Court, on the IFC immunity issue, she decides to rescind her earlier decision to await the decision of the Supreme Court. It is within her powers to so rescind her decision but once she has previously informed the accused of her intention to wait for the decision of the Supreme Court, it constitutes unjustifiable ambush of the accused person to change her mind without prior notice to the accused person. This is because the rescission of the promise to wait for the SC and the timing thereof disabled the accused from taking any pre-emptive measures legally available to him so as to insure that Justice Abban doesn’t read her judgment before the SC decided the IFC immunity issue. Our legal processes frown upon AMBUSH and this fact shouldn’t be lost upon a Court of Appeal judge, sitting as an additional HC judge.

3. When Mr. Tsikata informs the court his lawyer cannot attend court that day, Mr. Justice Abban asks Mr. Tsikata to represent himself since he is also a lawyer and must have been consulted before the application to be moved on that day was filed. You don’t have to be a civil rights lawyer to know this statement negatively affects the right to fair trial, especially when the court has the court date been notified on the absence of counsel. Lawyers also require counsel to represent them in cases.

4. When Mr. Tsikata is found guilty, he asks that the sentence be suspended because of the “judicial ambush” and to enable him take the necessary processes to defend himself. Mrs. Abban is led on by the Prosecution to understand this application as “an application for bail pending appeal”. Well, an application for suspension of sentence is not the same as an application for bail pending appeal. Although the provision dealing with an application for suspension of sentence has been repealed, the HC always has the inherent power to create a relief for an accused person when the ends of justice so require. Once Mr. Tsikata’s case involved issues of fair trial under our human rights provisions in chapter 5 of our Constitution, the judge could easily have relied on article 33 of our Constitution, if not the court’s inherent powers, to suspend the sentence. She misses this because she fails to appreciate the difference between an application for bail pending appeal and an application for suspension of sentence before appeal.

5. After judgment when Mr. Tsikata is brought to court at the next adjourned date to move an application for bail pending appeal he has filed, there is no hearing because the case has put been put before Mrs. Justice Abban, who after the judgment, goes ON LEAVE. What is surprising is this: doesn’t the person who put the case before her know she has gone or will be on leave?

6. Mr. Tsikita claimed the attitude of Abban on the day of judgment and some of the things she said in the judgment including the fact that “he was a member for the PNDC” showed bias. He wrote to the Chief Justice (CJ) objecting to Abban sitting on the case. The CJ wrote back indicating she could not deal with the matter “administratively” ,hence he should go to court on the issue of bias.

7. Mr. Tsikata files a motion in the SC arguing that by Abban rendering judgment when she has previously said she will await the SC decision on the IFC issue, an important part of the case in the SC, Abban had “desecrated” the authority of the SC. By her conduct in going ahead with her judgment and literally ambushing an accused person, Abban leaves the SC in a dilemma. When it rules in favor of Mr. Tsikata, what happens to the rushed judgment of Abban? The judgment must be reversed. If the SC rules against Mr. Tsikta, all sorts of suggestions about judicial solidarity will come up.

8. Mr. Tsikata also files an application in the HC before Justice Ofori-Atta to prevent Abban from sitting on his bail application on ground that she is biased against him. The Attorney-General (AG) objects to the hearing of this application on legal grounds .The AG says the issue of bias is already before the SC, and Mr. Tsikata cannot not have the same issue before two courts. He must choose between the HC and the SC to pursue the issue of bias.

9. The application of bias was put before the HC presided over by Justice Ofori-Atta. If this application is heard it might involve Abban entering the witness-box to testify. This is so because a gentleman had alleged he OVERHEARD Abban saying she would DISMISS Mr. Tsikata’s bail application even before she had heard arguments on the bail application.

10. When Justice Abban gets back from leave, Mr. Tsikata’s application is put before her. There is nothing abnormal about this. It is the usual practice in court that bail pending appeal is put before the judge who gave judgment. What makes this bail application complicated is the allegation of bias against Justice Abban. Mr. Tsikata objects to Abban sitting on his bail application, claiming and rightly so, he has an issue of bias against her in another court and once that issue is to be determined, the bail application before her should be on hold. Mr. Tsikata is right on this as well since the bias application is to determine whether Abban is competent to sit on the bail application. Undeterred Justice Abban converts Mr. Tsikata’s refusal to move the bail application to a bias application asking her not to sit on the case. She adjourns the case for her ruling on the bias application. Later, she rules she isn’t biased and goes ahead to dismiss the bail application.

11. This ruling is a bit strange because the issue of bias is already before another HC presided over by Justice Ofori-Atta. What Abban does, arguably, is a smart legal move to prevent Ofori-Atta from hearing the bias application against her. Since both she and Ofori-Atta are sitting as HC judges,Ofori-Atta has no power to review her ruling on bias .A judge of the HC cannot exercise review or appellate jurisdiction over the decisions of another HC judge. By her ruling on the bail application, Justice Abban literally prevents the judicial consideration of whether she is indeed overheard saying

SHE WOULD DISMISS THE BAIL APPLICATION.

12. If this allegation is provable, it raises serious questions about judicial ethics. Since Justice Abban pre-empts Justice Ofori-Atta ruling on the issue of bias, and such takes the wind out of his sail, it is not surprising Justice Ofori-Atta dismisses Tsatsu’s bias application indicating that the issue of bias is already before a higher SC. I don’t this reasoning persuasive since a judicial consideration of bias in the HC might involve testimony being given in court. Hardly can this be done in the SC.

13. What I find most shocking, and this borders on breach of judicial ethics, is this: after Justice Abban has read her judgment in open court on June 18, 2008, she only makes the judgment available to Mr. Tsikata AFTER she has dismissed his bail application. This is incredible! When an accused person files a motion for bail pending appeal he seeks to indicate the decision of the court is wrong and the accused has great prospects of winning the case on appeal. He does this by pointing out errors in the judgment. How is he supposed to do this when during the time the bail application is to be moved a certified true copy of the judgment, despite repeated requests, is not made AVAILABLE to him?

If rule of law, and not political or legal expediency, is the value we cherish, we all need to fully engage with what rule of law is really about. Political or legal expediency destroys faith in law. In as much as judges do make mistakes, when such mistakes result in terrible violations of basic legal norms we must never be tempted to use the institutional legitimacy of the judiciary to defend the indefensible.

Dusuuru Bamba [email protected]