Court of Appeal frees cocaine barons after 20 months in jail, A-G to go to Supreme Court

THE Court of Appeal yesterday acquitted and discharged Kwabena Amaning, alias Tagor, and Alhaji Issah Abass after they had spent almost 20 months in prison for an alleged narcotic related offence.
The court, presided over by Mr Justice E.K. Piesare, set aside the November 27, 2007 conviction by the Accra Fast Track High Court of 15 years’ imprisonment each with hard labour.
Other members of the panel were Mr Justice Yaw Apau and Mr Justice E.A. Addo.
The appellants were on November 27, 2007 convicted and sentenced when the court, presided over by Mr Justice Jones Victor Dotse, then a Court of Appeal judge with additional responsibility as a High Court judge, found them guilty on charges of conspiracy and engaging in prohibited business related to narcotics without authority.
That was after the Georgina Wood Committee set up to investigate an alleged 76 parcels of cocaine missing on board the MV Benjamin at the Tema Port had recommended the trial of the appellants.
In its unanimous decision, the court ordered the immediate release of the two, saying the conviction and the sentence were flawed and against the weight of Criminal Law.
The court described the lower court’s decision as a nullity and a cancerous tumour in the country’s legal anatomy which needed to be flushed out of the system.
According to the court, the charges, together with the accompanying particulars, were defective and deficient, while the prosecution failed to establish a prima facie case against the appellants.
The court was of the opinion that the trial judge erred in the first place by calling on the appellants to open their defence after the prosecution had closed its case when, in fact, there was nothing which had incriminated them for them to have been called upon to open their defence.
It said the court’s reliance on a recorded conversation which took place in ACP Kofi Boakye’s house was wrong in law, since that could not be termed as an admission of guilt or a confession statement.
“A confession statement is sufficient to sustain a conviction when it is direct and positive,” it held, and added that in the instant case there was no evidence that the appellants conspired to look for the missing 76 parcels of cocaine which was on board the MV Benjamin.
The court held that what was done by ACP Boakye was in pursuant of his duty as a top police boss in his anxiety to clear his name regarding rumours that linked him to the missing cocaine, although he was a material witness whom the prosecution failed to call to testify.
“ACP Boakye was worried because of information that Tagor and Alhaji Abass had been spreading rumours that he went to Tema and stole the cocaine from the vessel,” the court held, and added that the police officer was not a participant in the alleged confession statement but rather he was desperate and needed help to save his name.
The court maintained that the purpose of the said meeting was not for the appellants to go and look for the missing cocaine and reap the benefits there from but it was called by ACP Boakye in his anxiety to trace the whereabouts of the cocaine so that he could save his name.
ACP Boakye, the court affirmed, was the only person who could have assisted the court concerning all the details about what actually transpired at the meeting in his house, arguing that failure to call him meant there was no evidence for which he could, for instance, be charged.
The court lambasted the prosecution witnesses whom it described as having been in court to show their academic credentials because their evidence did not in any way assist the court.
It stated that it was wrong for the judge to have literally accepted the appellants’ reference to “niema” in Twi to mean ‘cocaine’ because it was not correct that the police investigator who, in his testimony, had claimed that he had gone to the underworld of the drug business had actually done so.
It said that the best person who could have testified to that was the one who was living in the underworld and not the police investigator.
The court said the offences for which the appellants were convicted were never stated, neither was the place and time stated.
“Failing to fill the gap was fatal to the case of the prosecution. The charge was mainly based on an admission of the appellants,” the court held, and wondered where in Accra and in which period of the month of May 2006 had the offence n place and also the nature of the offence.
It noted that those were issues that could have been answered by the prosecution but the trial judge glossed over them and erroneously called the appellants to open their defence.
The court likened the case to two scenarios, namely, murder and rape, in which people went around bragging that they had either killed someone or raped somebody when there was no evidence to that effect.
According to the court, under such circumstances, investigations ought to be conducted to verify the statement and those investigation should establish that, indeed, someone had been killed or raped.
In respect of the appellants, the court averred that investigations did not list out their involvement in any prior act, while the said statement was not made on any authority to warrant it being called a confession statement.
It said there was no evidence to the effect that 76 parcels of cocaine had been missing which the appellants decided to look for, except that there were rumours in the country to that effect, which called for the setting up of a committee which also could not establish its whereabouts.
At exactly 1:13 p.m. when it became obvious that the judgement had gone in his favour, Tagor screwed his neck from the box and looked in the direction of his wife who was seated in the gallery.
Lead counsel for Tagor, Dr Dominic Ayine, said of the judgement, “The three-hour wait was worth its while,” while the prosecution said it was going to study it to see the next course of action.
The other defence lawyers included Mr Kissi Adjabeng and Mr Osafo Buaben.
Sympathisers and relatives who thronged the court premises shed tears of joy and were lost for words when contacted for their comments.

Who killed the Ghanaians in the Gambia?

The signing of a memorandum of understanding (MoU) between Ghana and the Gambia in Sirte, Libya, which culminated in agreement by the Gambian government to make contributions to the families of six Ghanaians murdered in the Gambia seems to have fuelled the debate on the matter in the media and entire country.
When news about the alleged killing of the Ghanaians and other West African nationals in the Gambia was broken, many issues cropped up with some Ghanaians suggesting the extreme that Ghana should attack that country.
Those who suggested attack as the solution to the problem put up arguments that the Gambia was no country that could match the might of Ghana in military terms.
Matters have been compounded the more with the release of a report of the UN/ECOWAS about the complicity of the Gambia in the matter.
In the MoU signed in Sirte, the Gambia has offered to contribute to the families of the six people that that country accepted were indeed killed.
The Gambia has denied any wrongdoing in the matter to warrant any condemnation and even to accept responsibility except that it attributed the action to self defence and blamed it on some elements within its security set up. Their action was to quell the activities of certain mercenaries thought to be on a mission to overthrow the government of President Yahaya Jammeh.
This article will consider the issue of state responsibility under international law and whether or not the Gambia should be held responsible for the killing of the innocent Ghanaians and other nationals.
The laws of state responsibility are the broad and basic rules that govern when and how a state should be held responsible for any infraction of international dimension.
Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences thereafter; they establish the conditions for an act to qualify as internationally wrongful, the circumstances under which actions of officials, private individuals and other entities may be attributed to the state. They also set out general defences to liability and the consequences of liability.
It is these conditions that this article will address itself to.
With the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in August 2001, the theory of the law of state responsibility has come a long way in its development.
The International Court of Justice has long held on the issue of state responsibility in such cases as the Spanish Zone of Morocco Claims, and the Chorzow Factory case, in which the issue of reparation was made very clear.
Some other older cases and commentaries have discussed whether state responsibility is based on notions of fault or strict liability. These include the Home Missionary Society Claims, the Neer Claim case and the Caire Claim case.
It may be said that states are more "strictly liable" for the actions of their officials than for the actions of private individuals where in the latter case, it may be necessary to prove some "failure to control" the private individuals (i.e. "fault") before the state itself is held responsible.
In the strict liability sense, the principle of objective responsibility holds that once an unlawful act has been committed by an agent of the state that state should be responsible to the state suffering the damage.
This position was rejected in the Neer Claim case while the Caire Claim case upheld the test.
Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations.
This has become an increasingly significant contemporary issue, due to non-state actors such as civil society groups, multinational corporations, and non-governmental organisations, as well as militant groups, which play greater international roles.
The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent and is acting ultra vires.
Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance.
Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State although the act need not be authorised by the state authorities.
For instance, where there is a breakdown of normal governmental authority and control, such as in so-called "failed states", the actions of those acting as the "government" in a de facto sense will be acts of the state.
The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state.
This is also the case where a state acknowledges and adopts the conduct of private persons as its own. If private persons, elements or groups within a state engage in acts the government is not responsible except when the government rather than condemn the act praises or associates itself with it.
For instance if a Ghanaian rogue attacks a British intern in Ghana, the government will not be responsible for that act except when the act was committed by a soldier or policeman.
Under such a circumstance, the state is held as such. This was what happened in the Iran-US case when militants attacked the US embassy. In that case, the International Court held that the initial attack by the militants could not be imputed to the state. However, the subsequent approval by Ayatollah Khomeni and other state organs of Iran translated the acts into state act.
Article five of the ILC Draft Article provides that the conduct of any state organ having that status under its municipal law is considered as an act of the state concerned where the organ was acting in that capacity.
Similarly, ultra vires acts may be imputed to a state even if it is established that the act was beyond the legal limits or capacity of officers involved provided they acted as competent officials.
There is no denying the fact that Ghanaians and other West African nationals in their bid to get to Europe use other African countries as transit where some of them die under very horrifying circumstances.
Therefore, to mistake our befallen brothers for mercenaries is neither here nor there. I have not heard the Gambia deny the killings except to justify these senseless killings for acts of certain mercenaries, which is no justification anyway.
Only last week, the Gambian consul in Ghana phoned in to a TV3 programme to express his country’s regret about the incident.
If anything at all, those people who were killed could have been arrested to face the municipal laws of Gambia after having been investigated. This was not done and for me, once the killers have been identified as coming from the fold of the Gambian security set up, that makes the Gambia responsible in every respect.
The MoU begs the question and should not be used to throw dust into the eyes of Ghanaians and the international community. President Jammeh should be made to face the music rather than camouflaging the matter with just contributing to the families of only six people alleged to have been killed.
Is the contribution a reparation or what? The choice of words is deceptive and to evade the issue at stake. Accepting responsibility makes the payment of reparation necessary and in such forms as in kind as was done in the Temple case involving Thailand and Cambodia, monetary contribution as in the I Am Alone case, which the Gambia is reinventing as a contribution.
To say the least, this is an insult to the integrity of the people of Ghana and unacceptable. Definitely, the issue should not be left to rot. It must be pursued to its logical conclusion.
The breach of an international obligation entails legal consequences thus it creates new obligations for the breaching state, principally, duties of cessation and non-repetition (Draft Article 30), and a duty to make full reparation (Draft Article 31).
If illegal actions are continuing, the state has a duty to cease, which has been done.
The Gambia cannot rely on the defence of self defence because those killed were in no way armed or posed any threat to the security of that country. If they had been arrested while armed then probably it could rely on this defence.
And resolving to arrest the perpetrators in the Gambia is good but flawed in the sense that that should not be used to deflate the tension and also make nonsense of the law.
That is a matter between the government of Gambia and its citizens but as far as international law annd the international community are concerned, it has done wrong and need to be held responsible for that wrong.
It must acknowledge that fact before passing the buck.

Am on a short leave

It's been quite a long time that I have appeared on this page.
One may wonder why but am currently on my legal leave to do something for the future legally. Will definetly be back with a boom.
Cheers and can equally reach me via sahstephen2002@yahoo.co.uk