The due process of law must be upheld and respected in Kennedy Agyapong's contempt case

Tue, 29 Sep 2020 Source: Dawda Eric

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When the Kwabena Amaning popularly known as Tagor case became a matter of public concern, Justice Appau JA as he then was used the case as an opportunity to throw more lights on our criminal jurisprudence which is anchored on DUE PROCESS of LAW.

In his view, the fact that a particular case arouses national significance does not justify the crucifixion of our criminal law by applying different principles alien to our criminal law practice in establishing the guilt of a person.

In one of my articles captioned 'the powers of the court to commit for contempt must be regulated by law" which was published by Mynewsghana.net, I dealt with how the various forms of contempt could be treated. What we do know is that the power(s) given to any competent court of jurisdiction to commit for contempt is inherent.

What it means is that inherent power is one which is not conferred by statute. The power is ultimately given to the court to protect itself against any attack that has the propensity to bring the administration of justice into disrepute. See [ Republic v Liberty Press Ltd] [ Republic v Mensah Bonsu]

As I did indicate earlier, contempt of court could be civil or criminal depending on the facts of the matter. I have followed proceedings of Hon. Kennedy Ohene Agyarpong's alleged contemptuous comments which is currently before Amos Wuntah Wuni J.

The title of the suit remains unchanged meanwhile, on record, what is before the judge is treated as a criminal matter.

Before I move straight to the substance of the matter, let me use this opportunity to commend lawyers of Hon. Kennedy Agyapong for the kind of perfect representation they are doing on his behalf.

It is the most perfect representation any client standing a contempt trial could get in order not to be subjected to any trial that seeks to deny the person's fundamental Human Right as underpinned by the supreme law of the Land.

In the first place, the summon which had the seal of the Chief Justice invited Kennedy Agyapong to "show cause".

In fact, a summon to show cause is one that forces the said person to explain or justify why the punitive button of contempt should not be pressed against him or her. That procedure with the greatest of respect can not be applicable concerning matters of criminal contempt.

At the last adjourned date, lawyers of Kennedy Agyapong drew the court's attention to the principles of the disclosure as stated in article 19 of the 1992 constitution of the Republic of Ghana which was affirmed by the supreme court in Republic v Baffoe Bonnie & Others.

What pushed lawyers of Kennedy Ohene Agyapong to draw the court's attention to the above matter was in view of the fact that the video recording the court is currently relying on was not made available to the defence lawyers.

What is so sad is that, because the judge is the same person acting as a prosecutor in this matter as well as an adjudicator, lawyers of Kennedy Agaypong had to vehemently protest on the need to be furnished with a charge sheet for proceedings to continue.

The baffling thing is that the charge sheet which was given to the defence lawyers was not even signed. One requirement of a charge sheet is that it must contain the name and signature of the person who is exercising the said prosecutorial power.

The kind of charge sheet which was handed over to the defence lawyers was without a name and a signature. It is instructive to note however that, absence of any of the requirement renders the charge sheet invalid. See [ DPP v Phillips & Cakebread [2018] VSC 447;[ R v Parker [1977] VR 22).]

If lawyers of Mr Agaypong had not insisted on these basic fundamental requirements in criminal trials, the judge was ever ready to proceed in breach of Article 19 of the 1992 constitution of the Republic of Ghana anchored on the solid principles of fair trial underpinned by the Magna Carta.

The signing of the Magna Carta by King John marked another historical development of the right to a fair trial and the Rule of law in General.

Article 19 of the constitution of Ghana is an adoption of the Magna Carta signed in 1215.

As with Human Rights, fair trial, in general, was developed and codified during the enlightenment period of the eighteenth and nineteenth centuries.

The right to a fair trial as a Fundamental Human Right has been guaranteed In the African Charter On Human and Peoples Right(1981) which Ghana is a party to.

A charge sheet is a foundation of every criminal trial. It contains particulars or details of offence which is normally read to the accused person in a language he understands even before a prosecutor begins his duty required by section 11 and 13 of the Evidence Decree,1975(NCRD 323.). A defective charge sheet renders an entire trial nugatory.

An aspect of the trial which troubles me is the particular kind of evidence the court is seeking to use in this matter. According to the judge, the court downloaded what was on youtube channel in defiance of section 6 of the Electronic Transaction Act,2008(Act 772).

Youtube we all know has a massive disclaimer regarding things that float on their platform and same is the reason why the court by the authority of the law ought to have made a formal application to Youtube on the said piece of information. The court, therefore, can not suo moto download same and use it as evidence when the court can not satisfy itself with the integrity of what it is seeking to rely on.

The procedure for any criminal trial is the same as a trial on matters of criminal contempt. Any trial which seeks to circumvent the DUE PROCESS of law would certainly serve as bad precedence and same must be the reason why such trials which is a complete denial of peoples fundamental Human Rights must be criticised.

It is against the principles of Natural Justice for the court to act as a prosecutor and an adjudicator at the same time as we are witnessing in Kennedy Agyapong's case. He has shown his readiness to face the very trial every responsible Human Being wishes to be subjected to.

The fact that the power of contempt is exercised almost arbitrary does not by any stretch of the imagination mean that the power must be activated without DUE PROCESS OF LAW.

Columnist: Dawda Eric
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