ISSUES OF JUSTICE AND JUDICIAL CORRUPTION

“ISSUES OF JUSTICE AND JUDICIAL CORRUPTION” BY

PROF. MIKE OQUAYE, FORMER SECOND DEPUTY

SPEAKER OF PARLIAMENT.

Introduction

This presentation is totally apolitical. It is an objective

academic effort to interrogate an important national

issue.

Article 125 (1) of the 1992 Constitution of Ghana says

“Justice emanates from the people”. As Ghanaians we are all the owners of justice. But we cannot all sit as judges at any particular time. We need teachers, nurses, masons et al to do various jobs to build the nation. 

On our behalves judges sit to render justice so that

criminals, wrongdoers will be brought to book and the

rightful owners of land will have peace to develop them.

Justice emanates from all of us and belongs to all of us.

No one should forget this. Our judges are given

independence, many privileges and even they receive

FULL salary every month after retirement till death so

that they will be above corruption while serving us.

The society at large and all men/women of goodwill are

entitled to watch, observe and monitor judges at all

times to see if they are administering well, what belongs

to all of us.

In the past few years, corruption in the Judiciary has

been in the public domain. The Chief Justice has

persistently referred to the “perception” of corruption

and the need to tackle it to save the judiciary.

Even Parliament has found it necessary to enquire into

“The perception of corruption in the Judiciary”. Think

Tanks – including IEA, CDD etc – have researched this

“perception”. Debates have continued to soar and the

“noble” institution endangered. A few years ago, Dr.

Raymond Atuguba, an excellent academic and late Larry

Bimi, came out categorically that several judges were

corrupt and selling justice. Several citizens were

disturbed. Lawyers and other commentators spoke

about “perceived” corruption.

At one stage those who cried foul were refused

appearance before judges. Others, including this writer,

stated boldly that there were some clean judges in

Ghana notwithstanding the probability of some corrupt

ones. It will be unfair to paint the good and the bad,

the beautiful and the ugly, with the same brush. This

writer and others called for specific evidence in

individual cases in the public interest.

One matter lingered after all the furore: Corruption in

the Judiciary; Perception or Reality?

The Anas Intervention

By the grace of God, in defence of the Constitution and

on behalf of the entire people of Ghana, from whom

justice emanates, one bold and selfless citizen, decided

to investigate/interrogate the matter of judicial

corruption scientifically. He applied the ONLY method

possible which now we all know of. He got results.

This Ghanaian did not just embark on a wild goose

chase. He has a track record known to all. He has done

this with regard to CEPS, DVLA, Children’s Home, Child

Trafficking etc. This track record is important to this

case. It shows motive. Presidents have acknowledged

him. All have hailed his assiduity, principle and stand

against injustice and corruption. These include judges,

civil society, priests academics, politicians, et al.

President Mills appropriately acknowledged his efforts.

Indeed, his findings brought sanctions and reforms in

the public sector. This cannot exclude the Judiciary.

Private investigators have become a complimentary arm

of the State. They unearth evil and corruption and make

the truth prevail.

In the application of modern jurisprudence, nobody

should take seriously archaic issues relating to

“entrapment” and being “set up” etc. The globalised

world has to meet the challenges of corruption, money

laundering/trafficking, cyber crime, professional judicial

robbery etc. with fresh legal applications. Not long ago,

you could not arrest a president and try him abroad

for offences against his people. If Africa cannot meet

the challenges of good governance and anti-corruption,

very soon, our development partners will develop

global principles and arrest and try our corrupt judges

abroad for us. After all, they invest heavily in Africa and

this includes investment in the Judiciary itself.

Today, Ghana has a Whistleblowers Act etc. Those who

report criminal acts are rewarded by law.

Definitions

The Code of Ethics of the Ghana Journalists Association

taking a cue from the Evidence Act provides:

“A journalist shall obtain information, photographs

and illustrations, only by straightforward means;

The use of other means can be justified only by

overriding considerations of the public interest”

What can be more “overriding” than the sanctity of the

entire Ghana Judiciary?

An “Agent Provocateur” is a French expression which

means an “inciting agent”. He may be a public officer or

a private individual – secret agent. He usually sets a trap

to test whether a person whose conduct is under

investigation will fall into the trap.

Johnson gave us a good appreciation of what constitutes

inducement thus: “An officer merely approaching a

defendant and requesting that they commit a crime

does not. To claim inducement, a defendant must prove

he or she 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”.

 [i] The Guilty and Innocent

I heard on radio, an argument that he who offers a

bribe and he who accepts are both guilty. I have two

arguments here: If both are guilty, let the judges go and

answer their charges and let Anas go answer his. Can

that prevent the judges from being prosecuted? No.

And don’t you know that it is a simple practice in

criminal prosecution that even among offenders, you

charge the person who is the real criminal and use

some other persons involved to secure conviction?

Second, a crime comprises the actus reus (the action

complained of ) and mens rea (the guilty mind – the

evil motive). Both must be present to gain conviction. It

may be said that both Anas and the judges did

something ie giving bribe and taking. Fine. But what was

the mind of the judge? Clearly it was to unlawfully

enrich himself, doing something culpable. Of course

there is guilt. What about the investigator? There was

no criminal mind ( also called animus criminis). In fact,

his mind was noble – to help clear up the controversy

of judicial corruption and save Ghana from the collapse

of the judicial system which lead to people taking the

law into their own hands as we see today and the

disrespect for judges (including the clean ones), as well

as “revolutionary justice”.

Without a criminal intention, no action is by itself alone

criminal. Let me give an illustration: A man is notorious

for carelessly leaving his money about when drunk. One

day, he dropped such money in his sitting room. Two

friends took the money and handed it over to the wife

to let him have it after 5 days to learn a lesson. If in the

interim, the friends are charged with stealing they will

not be guilty. They took the money all right but there

was no criminal intent.

In the early years of the 31 December revolution, I was

in the High Court building that fateful day when

revolutionary forces wrongfully and violently took over

the Supreme Court in the name of the Revolution and

on behalf of the people. What happened should never

re-occur. So we should develop proper methods to

sanitise the system from time to time.

Global Practice

Modern developments in the laws of England, the US,

India and Ghana have been analysed by this writer. The

developments clearly favour the well-meaning

investigator and patriot. No one should attempt to

defend the indefensible and incur the wrath of the

people from whom justice emanates.

India has made great progress in this regard and

provides protection for informants/detectives. Hence, as

Chief Justice Monir said, “if a person enters into a

conspiracy, but for the sole purpose of detecting

offenders and bringing them to book, he/she cannot be

called an accomplice. Such a person is a mere

informant and his/her evidence may be accepted

without corroboration” Furthermore, the law protects

persons “who have joined in, or even provoked or

instigated the crime as (police) spies”. The reason is that

“the object of the investigation in such cases is not the

perpetration of the offence, but the detection of it; not

the transgression of law, but the securing of evidence

for the enforcement of public justice”.

[ii] It is incumbent on this writer to add that where the

hands of the investigator are clean and his thoughts are

seen as pure, no legal subterfuge should be allowed to

grind the wheel of justice to an abortive halt.

In the US, a critical case arose called “Operation

Greylord” in Chicago. Anyone who wants to speak on

judicial corruption and some of the “defences’ being put

up must read it. Go to Google. It will take only few

minutes!

By 1980, the Chicago Judiciary was stinking with

corruption. Bribes were offered rampantly: Judges had

fallen into disrepute. So-called perception was rife! It

had to be turned into evidence. “Operation Greylord”

was mounted. Greylord came from the grey wigs worn

by British judges, often called “My Lord”.

It was a three and half years operation in the early

1980s. Listening devices were placed in judges’

chambers; offices were bugged. This was necessary

because of the secrecy and difficulty of detection of the

criminal activity in question, the defendant’s

circumstances and the nature of the offence. Several

judges were caught, tried and jailed.

The USA situation is instructive. The Court held –

Sherman V. U.S. - “To determine whether entrapment

has been established, a line must be drawn between the

trap for the unwary innocent and the trap, for the

unwary criminal”. The judge who falls in the category of

the “unwary criminal” must face the music. At the Bar

Conference 2015 held in Kumasi, the Chief Justice noted

that the Code of Conduct prohibits a judge discussing a

case before him/her with others. I will therefore add

that if a judge discusses a case, bargains and proceeds

to take money, he/she has broken the rule twice over

and has himself/herself to blame.

In the case U.S. v. Russell, the Court upheld conviction

for manufacturing methamphetamine even though an

undercover agent had supplied some of the ingredients.

If a person is predisposed to committing a wrongful act

and he does so while being recorded, no amount of

“entrapment” yells will enure to his benefit.

In the Ghanaian case, it is worthy of note that some

judges refused to be “entrapped” and chased away the

possible entrappers.

Subjective and Objective Test

Notably, this led to the “subjective” test in entrapment

cases. This focused on the “state of mind” of the

“entrapee” (the person who claims to have been

entrapped). If greed clouds the mind of a judge and

takes bribe to pervert justice, he cannot turn round and

invoke entrapment to his legal advantage and be set

free.

Further to the “subjective” test, the “objective” test has

been developed. This focuses on whether the conduct

of the police or other investigator would catch only

those “ready and willing to commit crime”. Would the

conduct of the investigator induce a law-abiding judge

to turn criminal? That is the test. The answer is obvious

in the Ghanaian case, all that was done by the

investigator was to present a clear litmus test; the

crooked fell in and the innocent even chased him away.

On the whole, when a criminally-minded person is

ready and willing to break the law and commit a crime

to enrich himself, there is no entrapment when an agent

merely provides a favourable opportunity for the

person to show his true character and commit the

crime.

It will be an insult to common sense and the ends of

justice to allow a judge to approbate and reprobate by

keeping his ill gotten gain, feeding fat thereon and

continuing to do so and say the law cannot touch him.

And such a person says he should be allowed to

continue sitting as a judge feeding fat on his bribe

monies and other spoils. Society will rise and protest.

Aftermath

What has been the outcome and follow-up to cases

such as the Chicago Corruption Case? First,

complainants complained that where corrupt judges

had acquitted accused persons, there should be a re-

trial. Those accused persons then invoked the “double

jeopardy” rule, known in all common law nations of the

British tradition. That is you cannot try a person twice

for the same offence. With time, the US Supreme Court

and other Courts upheld that where acquittals are

tainted with fraud, they should be distinguished since

fraud vitiates everything. Other trials were held

thereafter and convictions obtained where applicable.

This is a lesson for Ghana.

In other cases it also transpired that such “corrupt”

judges were harsh and cruel to people who did not give

bribes and pronounced them guilty or gave them harsh

sentences so as to “balance the equation” and give

impression that they were fair and upright judges. Many

of such cases were retried. These are vital lessons for us

as well.

No anti-corruption fight can succeed in Ghana if the

judges themselves are corrupt. In the end, corruption

will destroy Ghana as a whole. Monies and resources to

assist the poor and vulnerable will land in the pockets

of corrupt rich people. The hope of the majority will be

lost and revolutionary violence will erupt. This is the

lesson of history. If the Judiciary cannot be trusted, land

guards, instant mob justice etc will prevail and get

worse. Do we want to see the worst before we sit up?

To prove that a judge has taken a bribe to fix a case is

extremely difficult. This is particularly so because of the

consensual nature of bribery. You do not expect the

judge who is the taker, nor the party in the case who

benefits from the criminal act, nor the betweener who

facilitates the crime and takes a cut, to reveal the

offense.

Indeed each one keeps it “secret”. Therefore, to move

judicial corruption (which actually exists) from the

“perception” stage to the “reality” level, you need under-

cover agents. This is what happened in Chicago and

other places. This is what has happened in Ghana. Swift

action must be taken to applaud the effort. If any

mistakes occurred, in the process of investigation they

should be corrected and all actual culprits dealt with.

Conclusion

A thousand wolves have been cried about perception of

judicial corruption. It has been perception, perception,

perception. Now it is evidence, evidence evidence.

Nobody can by any means whatsoever stand in the way

of the Truth. No one can prevent the interrogation of

this matter to its logical conclusion.

If the judges or any one attempts to take from the

people, that which emanates from the people, we will

deviate from the path of justice being pursued in the

present world. We will see the wrath of our people to

whom justice belongs and from whom justice emanates.

To be judge over your fellow man is to stand in the

place of God on earth. It is a grave responsibility. This is

because God Himself is the ultimate judge. To abuse this

trust is a most heinous crime.