Origin Of The Tribunals
Amnesty International considers that the real reason for the arrest of lawyers was the non-violent criticism of the government by professional organisations including the Association of Recognised Professional Bodies and the Ghana Bar Association.On 31 December 1981, the civilian government of Dr Hilla Limann was overthrown by a coup led by Flight- Lieutenant J.J. Rawlings, who became Head of State for the second time. The new government, the Provisional National Defence Council (PNDC), immediately suspended the 1979 constitution and formally abolished it on 18 February 1983.
Although there has been no corresponding abolition of the established law courts, their importance in the legal system has been progressively reduced in a number of ways. In 1982 especially, the activities of the courts were hampered by a breakdown in public order. For example, there were several recorded instances where soldiers or members of People's Defence Committees (PDCs) tried to interfere with the work of the courts in order to secure a particular verdict.
People's Defence Committees are local bodies established in early 1982 to represent public opinion and to safeguard the Ghanaian revolution. Bailiffs trying to enforce court orders, particularly in landlord/tenant disputes were liable to harassment. Some were reportedly detained in the country's main army camp, Burma Camp.
The Registrar of Cape Coast Circuit Court, Mr Quartey-Papafio, was reported to have been beaten by troops at Cape Coast army barracks in April or May 1982. By the end of 1982 at least five courts had been closed by the action of individual PDCs or Workers' Defence Committees (WDCs). These were district magistrates' courts at Agona Swedru and Sogakofe, and district courts grade II at Asamankese, Salaga and Offinso. Other courts had ceased to function temporarily or in individual cases.
Sometimes, individual members of the judiciary and of the legal profession have been subjected to physical intimidation or injury, in some cases at least with the participation or complicity of government authorities. The most notable such case occurred on the night of 30 June 1982, when three High Court judges and a retired army officer were abducted and murdered for political reasons. Among those subsequently convicted by a Public Tribunal of carrying out the murders was a member of the PNDC. In this case, a Special Investigation Board established by the government to inquire into the murders issued its final report in March 1983. It recommended the prosecution of 10 people including two people, Sergeant Alolga Akata-Pore and Joachim Amartey Kwei, who were members of the PNDC at the time of the murders, and a third, ex-Captain Kojo Tsikata, who was special Advisor to the PNDC and Head of Security.
In May 1984, the Attorney-General, G.E.K. Aikins, stated that he had found insufficient evidence to prosecute five of those named by the report including Captain Tsikata and former member of the PNDC Sergeant Akata-Pore, but that he had instituted proceedings against five others.
Supporters of the government alleged that the Special Investigation Board's final report was politically biased and that its authors were determined to implicate as many members of the government as possible, and Captain Tsikata in particular.
Opponents of the government alleged that, in refusing to prosecute Captain Tsikata and Sergeant Akata-Pore as the Special Investigation Board's final report recommended, the government attempted to hide the guilt of some of its own members. The five against whom the Attorney-General instituted proceedings were subsequently convicted by a Public Tribunal and sentenced to death. Four, including former PNDC member Joachim Amartey Kwei, were subsequently executed. One of those convicted of the judges' murder escaped from prison and was not recaptured.
According to reports received by Amnesty International, attacks on lawyers or on lawyers' offices on subsequent occasions have been carried out on instructions from government officials. This would appear to have been the case with respect to attacks on lawyers at Koforidua in October 1982, and at Sekondi and Takoradi in June 1983, when lawyers were assaulted and had their property destroyed, allegedly on instructions from the Western Region Coordinator for PDCs and WDCS
In June 1983 several prominent law- yers, including a past President of the Ghana Bar Association and the current National President of the Association of Recognized Professional Bodies (ARPB) were detained. According to the Ghanaian Times, the authorities suspected them of involvement in an attempted coup.
However, Amnesty International considers that the real reason for their arrest was the non-violent criticism of the government expressed by some lawyers and by professional organizations including the ARPB and the Ghana Bar Association. Two lawyers still detained without charge at the end of 1983, Sam Okudzeto, National President of the ARPB, and Obeng Manu, a lawyer from the town of Sunyani, were adopted as prisoners of conscience by Amnesty International.
Another aspect of the challenge to the functioning of the established courts has been the establishment of courts by individual PDCs, without legal sanction and apparently on their own initiative. Such courts have been operated, for example, by PDCs in Takoradi at their headquarters known as Ginger Barracks, by the PDC at Kibi in Eastern Region, and by the Osu Zone PDC in Accra, which is situated within a few hundred yards of the centre of government at the Castle. These courts made their own charges, adopted their own procedures and imposed their own penalties. In February 1983 Chief Justice F.K. Apaloo addressed a meeting of the General Legal Council, a body which presides over the enrolment of new lawyers.
He asserted his strong belief that PDC courts are illegal:
"I have been asked whether these courts are lawful. My answer, of course, is that they are not. First of all no law has set up PDC courts. A court is legal only when it is created by law, Secondly, in a trial in the regular courts, a person knows the law he has in- fringed and the penalty he is likely to suffer. And he is given the opportunity to defend him- self by counsel if he chooses to have one. None of these pre- requisites exists in the PDC courts.
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.
Since late 1982, however, the government has acted to suppress at least some illegal PDC courts.
The first session of a Public Tribunal was inaugurated in Accra by Flight- Lieutenant Rawlings on 26 August 1982, and began sitting on 31 August 1982. From their inception, proceed- ings of all Public Tribunals have been held in public and the accused have had a right to legal counsel. Most defendants, however, have not been represented by counsel due to a boycott of the tribunals by the Ghana Bar Association, which has described them as representing 'a misguided attempt to supplant the ordinary criminal courts of Ghana.'
Only a few lawyers have been prepared to appear before Public Tribunals, in defiance of the Bar Association's boycott, which has most recently been re-affirmed at the annual general conference of the Ghana Bar Association in Accra on 12-13 January 1984. The Ghana Bar Association re affirmed its boycott in protest against specific features of the Public Tribunal, including the lack of right of appeal, their duplication of the function of the traditional courts, and the Public Tribunals' veto of technical argument.
Since August 982 the Public Tribunals have functioned in tandem with the established courts, except for a brief period in June 1983. This inter- lude occurred when representatives of the WDCS of Accra and Tema occupied the Supreme Court building on 21 June 1983. They announced the dissolution of the Judicial Council and the abolition of the post of Chief Justice.
Three days later, people speaking on behalf of the WDCS claimed that the time had come to abolish the old judicial system and to replace it with what they described as 'a more dynamic and egalitarian people's judicial system. According to their statement, the Public Tribunals Board would constitute an interim people's judicial council with additional representatives from various other organizations, including the WDCs of the judicial service.
The projected People's Judicial Council would apparently be man- dated to establish guidelines for a new judicial system. Although this action was widely reported as the abolition of the traditional judicial system, Attorney-General George Aikins stated in an interview with the Ghanaian Times on 26 June 1983 that F.K. Apaloo remained Chief Justice and that his post had not been abolished
He said that the government was continuing to take steps to reform the judicial system, and that 'a spontaneous and precipitate abolition' of the traditional system would not achieve the result desired by the government. Mr Aikins stressed that the Public Tribunals could be operated only by people authorized to do so by the law.
The precise purpose of the Public Tribunals has been the subject of conflicting statements. For example, during an interview with a delegate from Amnesty International on 17 August 1983, Kwamena Ahwoi, PNDC Coordinator of Investigations, Vetting and Tribunals, stated that the Public Tribunals were intended to eventually replace the established courts entirely. He added that the interim period, during which a dual judicial system was in operation, was a necessary step in the transformation of old state structures.
However, on other occasions the authorities have stated that the purpose of the Public Tribunals is not to super- sede the ordinary criminal courts, as the Ghana Bar Association has claimed and as Kwamena Ahwoi stated.
Despite this and similar government statements, concern continues because of a lack of clarity about the exact competence of Public Tribunals. It remains unclear, for example, why some cases are referred to Public Tribunals when other comparable cases are heard by the established courts. Nor is it clear which officials or bodies decide whether a given case is to be heard by an established court or by a Public Tribunal.
The lack of clarity regarding the jurisdiction of the established courts and the Public Tribunals and regarding the procedures for referring cases to them gives particular concern not only because the punishments imposed by Public Tribunals are sometimes heavier than those envisaged by the established courts, but also because the standard of proof required would appear to be rather lower.
Some people, including former members of the government, have alleged that in some cases the authorit- ies have directed that a case be heard by a Public Tribunal for political reasons, because there exists a higher chance of conviction.
By May 1983 Public Tribunals had been established in most or all of the capital cities of Ghana's provinces. In June 1983, the Public Tribunals were reported to have sentenced over 7,000 people since their inception 10 months previously. On 22 December 1983, the government announced its intention of establishing the Public Tribunals at every level from district courts to higher courts and of creating an appeals system. However, by May 1984 it was not clear to what extent this aspiration had been carried out.
Amnesty International received reports that, notwithstanding the amendments to the Public Tribunals system announced in December 1983, there was still no court empowered to hear appeals from appellants convicted by a Public Tribunal.
