In The Matter of The State V. Kwasi Kyei Darkwah II

By Dr. Samuel Adjei Sarfo

Attorney and Counselor at Law

In the previous article, we discussed case law in Ghana to reach a firm conclusion that the rape case against Kwasi Kyei Darkwah will not stand any legal muster. I will go further to opine that it should be altogether thrown out ab initio with all concomitant contempt. Absent this, the prosecution is set for an extreme embarrassment regarding the substance of the case itself.

Most people viewing the case are conflating the issue with their personal view of morality. These question why a forty-nine year old person could be engaged in a sexual act with a nineteen year old girl who is young enough to be his father. As for this argument, I must state at the outset that I take it as a personal insult: My father married my mother when he was forty-nine years old and my mother nineteen. They were married for thirty-five years, and I, Samuel Adjei Sarfo, I am the product of that union, being the last among my siblings. When my father married my mother, he was older than my grandfather Kwaku Duah, and my grandmother Yaa Mansah. Besides, my late half-brother Adjei Aboagye was older than my mother by some six odd years. It was that marriage that took my mother and her children from extreme poverty to relative success and wealth. Up to today, there is not a single descendant of Akua Sarpomah who is not a distinguished citizen in some respects. I myself attribute my extreme wisdom and insight to my father Kwasi Agyei ( born in 1896). Today, I will not blink my eyes in giving my eighteen year old daughter in marriage to a person my age provided the person can take good care of her as my father took care of my mother. That is why I am disgusted with those who dare question the moral basis of a relationship between an older man and his younger consort. That relationship always works to the mutual benefit of the parties.

Besides, there is nothing in any culture anywhere at any time that frowns upon a marriage in which the parties have stark disparities in age. So this whole moral premise against such a relationship is non-existent, and has been concocted by some disgruntled youth who cannot compete fairly with these older albeit well-to do men who intrude upon their perceived turf. They are yapping today because old age and success have not yet caught up with them and they are angrily hating upon the older men having all the fun with the younger girls. But they are the very people who will be haunting the streets for trophy wives in the latter days of their success when their phallic powers become weaker against their old and boring partners! To me, their present hatred against Kwasi Kyei Darkwah’s fling with a nineteen year old girl smacks of sheer jealousy and envy. Indeed, most people condemning KKD’s shenanigans are, or will be doing the very same thing if they had his fame and glory……….

Now to the main issue: If people consider rape law in the context of this matter, they should go backwards to determine the intent and purpose of the proponents of the law to figure out if they were truly intended for the present situation at bar. If two people walk hand in hand into a hotel and have sex in a bathroom while their relatives are waiting in the main room, can the female now come out to claim that she was raped? Is that the type of scenario for which the rape laws are made in Ghana? Certainly, they are made for the protective class where the individual woman is patently forced to have sex with a partner. They are not made for instances such as the one before us.

Then again, how is the prosecution going to assert rape under the circumstances described? How is it going to allege its case in chief? The prosecution is going to have to prove every element of rape according to the law. In Ghana, the term sexual offences is used in Chapter Six of the Criminal Offences Act, 1960 (Act 29) Section 98 of the Act defines rape thus; “rape is the carnal knowledge of a female of not less that sixteen years without her consent.” Thus, to prove rape, the accused person must have

1. had carnal knowledge, which is sexual intercourse (penetration)

2. of a female and

3. there must have been a lack of consent on the part of the female.

How is this lady going to show the court, through proper evidence and witness testimony, that there was no consent when all the corroborative evidence show otherwise? Is she going to say simplistically that she said “no” and pushed the man away? Is that how to prove a crucial element of a case of rape? I have thought about this matter for a long time without coming to any conclusion as to how this whole business of rape is going to fare in the courts. Unfortunately, many commentators simply prove their ignorance by their assertion that the man is guilty as charged…..

Indeed, this particular case has also presented the underbelly of the ineptitude of Ghana’s so-called legal luminaries. One of such had the ire to posit that the magistration of the case was done in a court without jurisdiction over the case. I am like, if you have no clue that arraignment could be done in a magistrate court, what else did you study in law school? Then in full glare of the media cameras, another clueless lawyer declared in stentorian voice that as far as rape is concerned, the laws of the country has taken away the power of judges to grant bail. Obviously, this person has not read any law books since he got his degree. Yet KKD’s lawyers, instead of asserting the constitutional and legal grounds for bail, also chose to dwell on the merits of the case whereas the merits of a case has little, if anything, to do with application for bail. Application for bail is made on strict constitutional and legal grounds, leaving the merits to the trial court! All this can happen in a country where a whole Supreme Court Judge can summon media people before him and incarcerate them without due process on a case of contempt while a whole Bar Association looks on with total approval.

Kwasi Kyei Darkwah’s bail must be argued on the basis of the law which simply requires the defense to show among other things that the man is not a flight risk, and that he has such connection with the society that will make him identifiable and available for court; or that he will not pose any danger to the victim or the society. If the matter is viewed using these factors, KKD should be granted bail as soon as possible.

But we have shown ourselves to be a nation of negative emotions and a people ready to do others in even if it means sacrificing our freedoms and liberties in the process. Not long ago, we cried, “Let the blood flow” against certain former leaders who were given some sort of kangaroo trial and shot by firing squad. Long before that time, we had countenanced a sublime dictator as he gradually instituted incarceration without trial and made himself life president and made our dear country one-party-state, thereby abolishing all legitimate opposition. Today, we are stridently shouting for a person to be jailed simply on somebody’s allegation that he raped her. We are not bothering to step back to scrutinize the matter and to question the authenticity of the allegation. Like hounds, we are baying at someone because he is tied to a tree for crucifixion……. But we must remember that the law is like a Swiss watch; take a small part, and the whole device crumbles. Martin Luther King Junior said that a threat to liberty anywhere is a threat to liberty everywhere. Niemöller is perhaps best remembered for the quotation: First they came for the Socialists, and I did not speak out because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me—and there was no one left to speak for me. If we are today sitting here shouting “crucify him” because the matter concerns Kwasi Kyei Darkwah, we must be prepared to swing on a day when all of us will be similarly accused by our disgruntled partners. Then there will be nobody to speak for us. As for me, I will end by paraphrasing and amending General Afrifa’s prophetic statement to General Acheampong: I do not certainly want to be arrested on some sort of trumped up rape charges, given some sort of trial and incarcerated. The ancient ancestral proverb makes no sense to me: If you discover that your neighbor’s beard is burning, don’t just fetch water and put it by yours; fetch water and go and pour it on your neighbor’s beard to put the fire out before it spreads to yours. That makes more sense to me!

Samuel Adjei Sarfo is a Doctor of Laws, Attorney and Counselor at Law, a Man of Lore, Certified High School English Teacher, Researcher and Scholar. He can be reached at sarfoadjei@yahoo.com