Amnesty's concern over tribunals
A fundamental flaw of the public tribunal system in Ghana is its failure to provide the right of appeal to those convicted of criminal offences by the Public Tribunals.Amnesty International has monitored proceedings of the Public Tribunals in Ghana since their estab- lishment pursuant to PNDC Law 24 (Public Tribunals Law, 1982) enacted in July 1982.
A decision to renew efforts to send a delegate to Ghana to observe the Public Tribunals and to collect information about them was taken by Amnesty International in early August 1983. The organization was particularly concerned that on 2 and 4 August death sentences had been imposed upon 20 people by the Public Tribunals. Telexes were sent to Flight-Lieutenant Rawlings on 3 and 9 August urging him to commute these sentences. The organization made these comunications with a great sense of urgency in light of the fact that, in a previous case concluded earlier in 1983 where the death penalty had been prescribed by the Public Tribunal, the convicted individual, Emmanuel Boadi had been executed within three days of sentencing.
The August 9 telex also stated that the organization's desire to send an observer to attend the then ongoing trial before a Public Tribunal of Joachim Amartey Kwei and others on capital charges of murder or conspiracy to murder in connection with the killing of three High Court judges and a retired army officer.
The organization's designated dele- gate, Wesley Gryk, a member of the bar of New York and a staff member of Amnesty International's Research Department in London, applied to the Ghanaian High Commission in London for a visa which was granted on 12 August 1983. He departed for Ghana on 14 August.
By the time of his arrival in Accra on 15 August, however, the trial of Amartey Kwei and his co-defendants had been completed, five death sentences having been imposed.
In addition, two days prior to his arrival, on 13 August, four individuals previously sentenced to death by the Public Tribunal had been executed. Amnesty International's delegate delivered personally to the PNDC's head- quarters at The Castle letters from the Secretary General of Amnesty International to Flight-Lieutenant Rawlings expressing regret at the executions which had taken place and calling upon the Chairman of the PNDC to commute those death sentences which had not as yet been carried out.
While Amnesty International's delegate was unable to observe the proceedings against Amartey Kwei and his co-defendants, he was able to take the opportunity of his presence in Ghana to collect considerable information regarding the constitution of, and the procedures followed by, the Public Tribunals.
On the basis of the information collected during the delegate's stay in Accra and additional information obtained by Amnesty International with respect to the Public Tribunals, the organization would like to address to the Government of the Republic of Ghana the following specific concerns relating to the Public Tribunals.
Article 14 (5) of the International Covenant on Civil and Political Rights articulates the fundamental inter- national legal standard relating to appeals from criminal convictions:
"Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."
A fundamental flaw of the Public Tribunal system in Ghana is its failure to provide the right of appeal to those convicted of criminal offences by the Public Tribunals. It is imperative, in Amnesty International's view, that such a right of appeal be instituted.
Such appeal should be before a judicial body established by law with a membership different from the convicting Public Tribunal and including one or more legally trained individuals.
The convicted individual should have adequate opportunity to receive, review and respond to the judgement against him or her in the context of the appellate proceedings and should have the right to legal representation. The procedures to be followed by the appellate body should be clearly set out in law.
Although the PNDC is reported to have received petitions from people convicted by Public Tribunals, officials have stated that there is no right of petition. Mr Addo-Aikins is reported to have declared in April 1983, in response to a newspaper article, that people convicted by Public Tribunal do not have a right of appeal or petition, although they may seek leave to petition.
Government officials with whom Amnesty International delegate spoke pointed out that the PNDC itself must confirm death sentences imposed by Public Tribunals and may commute such sentences. The right to seek commutation of a death sentence is, however, separate from the right to judicial appeal.
In addition to specifying a right of appeal as described above, the Inter- national Covenant on Civil and Political Rights, in Article 6 (4), states:
"Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases."
Amnesty International is in fact gravely concerned that the procedures currently followed by the PNDC in considering the commutation of death sentences may be seriously inadequate. As was noted in an introductory section to this memorandum, Joachim Amartey Kwei and four of his co- defendants were sentenced to death by a Public Tribunal on 15 August 1983
On 17 August, during the course of meetings with officials, it was confirmed to the Amnesty International delegate that the written judge- ment in the case had been prepared and would be forwarded to the PNDC to consider whether the death sentences would be confirmed or commuted.
As of 4.45 p.m. on the afternoon of 17 August, the officials with whom the delegate was then speaking, who said that he was responsible for forwarding the judgement to the PNDC, stated that he had not yet done so. Yet, the death sentence against three of the convicted individuals is reported to have been carried out the following morning at dawn.
Amnesty International believes that this sequence of events indicates that the PNDC did not have adequate time to give due consideration to the contents of the judgement before confirming penalties therein.
The organization is also concerned that the defendants themselves appear not to have been given copies of such judgements so that they might address specific points included therein.
In light of these concerns, Amnesty International would call upon the Government to clarify the procedures followed with respect to confirmation of death sentences by the PNDC and to take all necessary steps to bring such procedures into conformity with United Nations General Assembly resolution 35/177 of 15 December 1980 on arbitrary or summary executions, which provides that "no death sentence shall be carried out until the procedures of appeal and pardon have been terminated and, in any case, not until a reasonable time after the passing of the sentence in the court of first instance."
Amnesty International notes that Section 2 of PNDC Law 24 provides that both members of the Board of Public Tribunals and members of the Public Tribunals themselves are appointed by the PNDC. It is of course not unheard of that judicial officers are appointed by the executive branch of the government.
What is of more serious concern is that, under the law as presently enacted, members of the Board of Public Tribunals and of the Public Tribunals would appear to serve at the will of the PNDC. The period and terms of service of such officials are not designated, nor are procedures and grounds set down for potential dismis- sal. Arbitrary dismissal by the PNDC on any or no grounds would seem to be a possibility.
This is in contrast to the traditional court system in Ghana where judges serve until retirement unless a cause is found for their dismissal under a particular procedure laid down in law.
The right of a criminal defendant to be presumed innocent until proven guilty according to the law is enshrined in all major international human rights instruments.
While officials with whom Amnesty International's delegate spoke con- firmed that the presumption of innocence was a fundamental principle of the Public Tribunals, the organization notes with concern that section 7 (14) of PNDC Law 24 provides:
"In every trial arising out of an adverse finding of a committee against the accused the findings shall be deemed to be prima facie evidence of the facts found and the accused shall be called upon to show cause why he should not be sentenced according to law for the commission of the offence charged."
This same shifting of the burden of proof is not specified in PNDC Law 24, with respect to trials which do not arise from the findings of committees. However, Amnesty International has been informed by lawyers who have appeared before and observed the Public Tribunals that, in cases where the prosecution has in their estimation clearly failed to make a prima facie case, the Public Tribunals have none- theless refused to allow defence motions of "no case' at the end of the prosecution case.
If true, this would appear to indicate that the presumption of innocence may not be operating in such cases. The Government should make clear that the presumption of innocence is a fundamental principle in all cases before the Public Tribunals, including those arising out of adverse findings by committees, and should ensure that procedures followed by the Public Tribunals bear witness to the application of this principle. Right to Legal Counsel Fundamental international legal standards with respect to a criminal defendant's right to legal counsel are articulated in Article 14 (3) of the International Covenant on Civil and Political Rights which describes, in sub-paragraphs (b) and (d), the defendant's right.
The Amnesty International delegate was told that arresting authorities in Ghana are legally required to advise those arrested of their right to legal counsel. In one of the Public Tribunal proceedings which the delegate obser- ved, several of the defendants claimed not to have been so advised though the fact that these defendants were themselves police officers detracted from the force of their argument.
