The Rule of Law and the Court of Public Opinion

Last Wednesday, the Supreme Court of Ghana, in a 5–2 majority decision, ruled that the delegate system used by political parties to elect their presidential and parliamentary candidates is unconstitutional. The Court ordered political parties to replace it with a system that allows all members in good standing to participate in the selection of presidential and parliamentary candidates.

This verdict brought me a great deal of joy because I firmly believe that the delegate system, which the Court has now held to be unconstitutional, has been one of the root causes of many of our country's political problems. Yes, there is blatant incompetence in government, but before any incompetent individual gets the opportunity to serve in public office, they must first win an internal party election. Under the delegate system, that process has often been deeply flawed.

Based on the original idea behind it, the delegate system actually made sense. A few executive members of a political party would select the individual they believed was best suited to lead the party as a parliamentary candidate or flagbearer. The unfortunate thing is that the entire system became corrupted because individuals with money could influence these few delegates to vote in their favour.

These delegates had the enormous responsibility of presenting someone of substance to the entire nation for consideration. Instead, many of them traded that responsibility for motorbikes, fridges, cash and other gifts. They ended up voting for whoever offered the highest price. In theory, delegates could even select a complete fool as a candidate and, because that person represented one of the two major political parties, he could still go on to win a national election. That is an absurd way of selecting people to present to an entire country.

Like I said earlier, I was very excited when I saw the ruling against the delegate system because it has now becomes much harder for a fool with money to simply buy their way onto the ballot paper to run for Parliament or the presidency. I know allowing all party members to vote in these primaries will come with its own challenges, but at least it gives people with genuine ideas and competence a better chance of being elected based on what they present rather than what they can pay.

The next day, which was Thursday, all my excitement was dampened when the Court of Appeal, in a unanimous decision, acquitted and discharged Sedinam Tamakloe of all the charges against her.

This one was really heartbreaking because the optics of it just didn't look right.

There are many legal reasons why the Court of Appeal arrived at that conclusion, but understanding those reasons does not necessarily make the outcome easier to accept.

The first issue I noticed was what appeared to be the prosecution's failure to properly discharge its burden of proof. This is one of the most fundamental principles of criminal law. If you accuse me of stealing your money, it is your responsibility to prove that the money was yours and that I unlawfully took it. I do not have to prove that I did not steal it. The prosecution bears that burden throughout the trial.

From what the Court indicated, it appeared the prosecution failed in some important respects to establish its case, and that is a fundamental problem in any criminal prosecution.

Secondly, the Court also seemed to suggest that the charges themselves were poorly framed. In other words, the case brought against her simply was not strong enough in law. The State failed to present properly constituted charges.

This is particularly disturbing because similar criticisms surfaced in the Ato Forson case. Why are our state institutions repeatedly struggling to draft legally sound charges? A charge is the very foundation of a criminal prosecution. If that foundation is fundamentally defective, then the entire case is placed at risk.

The third issue relates to trials in absentia. This case has exposed a loophole.

Madam Sedinam was granted permission to travel to the United States on health grounds while her trial was ongoing. She did not return, and the trial proceeded in her absence, which is permitted under certain circumstances by our laws.

The difficulty with trying someone in absentia is that if the accused never testifies, the prosecution loses the opportunity to cross-examine them. Meanwhile, the defence can still challenge weaknesses in the prosecution's case on appeal. That means the prosecution must build an exceptionally strong case from the very beginning. Otherwise, the accused can later return, appeal the conviction and successfully attack the weaknesses in the prosecution's case, as happened here.

Now that we have seen how this can play out, I hope we all calm down with the calls for the former finance minister to be tried in absentia.

The judgment does not say that Madam Sedinam did not commit the offences she was charged with. Rather, the Court found legal deficiencies significant enough to overturn the conviction. Those are two very different things.

Like I said earlier, the optics are simply not good. She was prosecuted under an NPP administration, and now, under an NDC administration, she has been acquitted and discharged. Whether or not that had any bearing on the outcome is another matter entirely, but perception matters in maintaining public confidence in the justice system.

It also forced me to ask myself an important question.

Do I want someone imprisoned simply because allegations have been made against them? Or do I want those allegations proved beyond reasonable doubt before they lose their liberty?

Madam Sedinam may well have misappropriated those funds or she may not have but failing to show this in court can lead to an overturn of the conviction as we have seen….The law simply does not care about your feelings.

Like I said earlier, this ruling was not palatable at all. I was genuinely upset until I heard the Attorney-General, Hon. Dominic Ayine, speak yesterday afternoon.

I like Hon. Dominic Ayine. Actually, I love him. Maybe I'm a little biased because he comes from the North, but I genuinely admire him. He speaks with so much conviction.

When he announced that the State would appeal the decision, it brought me some comfort.

I realised that my frustration was never really about wanting someone jailed at all costs. My concern was that I did not want our judiciary to appear as though it bends depending on which political party is in power.

Considering that Chairman Wontumi, a leading opposition figure, has also recently convicted, I did not want a situation where one side was aggressively prosecuted while the other side appeared to escape accountability.

The State's decision to appeal may or may not ultimately succeed, but at least it reassures me that they are willing to pursue the matter even when it involves someone associated with their own political party.

The optics of this entire situation are still difficult for me to reconcile with the legal reasons the Court gave for reaching its decision.

Criminal law is built on ingredients, procedures and technical requirements. If you accuse someone of committing an offence, you must prove every essential element beyond reasonable doubt.

That is why the quality of prosecution and prosecutors matter so much.

As much as the ruling on the delegate system excited me, the ruling in the Sedinam case dampened my spirits.

Welcome to a country called Ghana.