This week in Melbourne, a board member of one of the largest corporations in Australia, was fined $136,000 X 3 plus a 10 year disqualification from membership of any company board in Australia. That member had admitted to putting information gained as board member to personal financial gain. His was insider trading. The public was not happy at all. In contrast, I could not help than admire how an outcome could so cleverly be crafted to satisfy all concerned. I explain.
The regulatory body, smelling a rat, confronted the board member. The board member's lawyers struck a deal - the board member would talk, in exchange for a penalty acceptable to all parties. The regulatory body admitted so much, it would have difficulty proving guilt in court. The board member knew the court of public opinion was harsher that a court of law, and even if acquitted, his enormous reputation in the community would be irreparably damaged. The regulatory body reckoned if it failed to secure conviction, it would greatly undermine foreign investor confidence in local companies and in local courts dealing with corporate misbehavior. The deal, before it went to court, satisfied both interests. The judge when presented with the deal, took care of the public interest - he doubled the agreed prosecutor-defendant agreed 5-year disqualification of the board member.
I had not ceased celebrating the sheer brilliance of the accommodation of all interested parties in the above case when I read the article titled ?A 16-year old boy is jailed for 10 years? at
http://ghanareview.com/review/index.php?class=all&date=2005-06 -03&id=11725
forwarded yesterday by a member of the Ghanaian internet forum, Okyeame. Admittedly it was published 3rd June, almost two months ago, but I am not aware the sentences in the cases have been reversed. Still, the seriousness of the decisions in the report, together with widespread arbitrariness in other sentencing in Ghana, need further stroking.
In the said report we have two cases:
1. " -- Maxwell Yaovia, a 16-year-old Junior Secondary School student, standing trial for defiling a 14 year-old school mate, -- was -- sentenced to a 10-year jail term in hard labour and also asked to provide three million cedis as compensation to the victim who is pregnant."
2. "In a related development, a Tarkwa circuit court, jailed a 28 year-old Small Scale Miner, Kofi Mensah to two years imprisonment for indecently assaulting an eight year old girl and escaping from lawful custody."
Comparing and contrasting
1. 16 year male vrs 14 year female. Both are juveniles before the law. Both are of the same sexual age, physiologically speaking, - they would have began puberty in the same year, and probably the same skeletal age despite the chronological age difference. The stronger sex consideration would or should not apply - both are kids.
2. 28 year old male vrs 8 year old female. Here the chronological age and mental development difference would clearly point to one knowing what he was doing, the other not. Before the law, it is adult-child crime.
3. Defilement in 1. can be equated to the indecent assault in 2. Note the blood stains in the underwear of the 8 year old victim who has not reached puberty and would not have developed a sense of sexuality associated with onset of puberty.
A British Medical Journal publication of a few years ago surveyed the onset of puberty over the previous few decades. The report concluded a decreasing age of onset of puberty. The report found that British girls were increasingly entering puberty while still in primary school and recommended that sanitary facilities must be provided in girls toilets with that in mind. If the first few months of menstruation is traumatic enough for girls entering puberty without adequate sanitary provisions, let us think about the kind of trauma caused by the sexual indecency revealed in the case of the 28 year old in my concern of this article.
4. The 28 year old male escaped from custody and damaged a policeman's mobile phone. There is no evidence that he was remorseful. In contrast, the 14 year old male 'pleaded for leniency, ?since the incident was an accident? '. Yet the 28 year old got 2 years imprisonment (no mention of hard labour) plus 2 million cedis for the mobile phone damage, compared with 10 years imprisonment with hard labour for the 14 year old.
5. Both male offenders were identified but the female victims were not. Concealing the identities of female victims was wise but revealing the identities of the male offenders defeats the purpose because it could lead to identification of the female victims.
What I gather from the above, and from others periodically reported on Ghanaweb, is that the judiciary is not on top of the job in Ghana. I see no public policy considerations in sentencing, nor understanding of the psychological or mental state of offenders and victims, nor appreciation of circumstances and drives to crime, nor consistency in judgments and sentencing. Significantly I see no evidence that the courts have their own interests at heart - that which drives judicial discipline and uprightness. But I see judicial arbitrariness and indiscretions.
Most of my colleagues in the diaspora particularly on the Ghanaian internet forum, Okyeame, believe ?truth in sentencing? is the best way to go. They recommend sentencing guidelines. I have been vehemently opposed to Government imposed guidelines in these parts of the world - for a number of reasons
- I find that sentencing guidelines are too restrictive on judges, they take away from a judge?s indiscretion, that which exercised carefully and, wait a minute, judiciously, enriches rather than undermine the law.
- I find that sentencing guidelines reflect community fashions rather than the essence of the law. The more organized community protest groups in these parts of the world, who may feel more strongly on an issue than the general population, might end up imposing their will on the community through sentencing guidelines, whereas left to judges, properly doing their jobs, would admit same in public policy considerations in real time.
- sentencing guidelines don?t have the same flexibility as unfettered common law. Take out the flexibility and responsiveness and you eviscerate the essence of Law.
- sentencing guidelines in these parts of the world have infiltrated the pre sentencing establishment of facts and conduct of evidence in court. It is prostitution of the court. In most cases. sentencing guidelines even imposes motive after a court finding of fact. E.g. a person in Victoria, Australia, deemed to be in possession of a certain quantity of cannabis is automatically deemed to be in possession of cannabis for trafficable purposes?. So a judge who had doubts at evidence about proof of possession of traficable quantities of marijuana, and makes fine line decisions about guilt, is contrasted in not excessing discretion and is straitjacketed to impose sentence by what is stipulated by sentencing guidelines.
Despite these reservations in these parts of the world, I am so convinced of the arbitrariness of Ghanaian judges, that I would like to suggest sentencing guidelines to apply to limited areas of criminal offenses. These areas should include offenses that offend the essential values of Ghanaians. Offenses against minors' especially of the sexual kind, offenses against the elderly especially given the status of the elderly in our culture.
Beyond specialized counseling for all the four tin this case, I would suggest that Judicial leadership in Ghana consider issuing out Practice directions to guide litigants/defendants, as one way to transform our slow courts to a hybrid of the slow and fast courts.
A 28 year old sexually assaulting an 8 year girl, 2 years imprisonment. A 14 year old ?defiling? a 12 year girl, 10 years imprisonment. This is Amnesty International stuff.
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