By Frank Amponsah
The Chief Justice of Ghana, Her Ladyship, and Justice Gertrude Torkornoo has been petitioned by a senior citizen of Banka to initiate investigations into the mild judgement awarded against the Bankahene, Osabarimah Twiampomaa III, after he was found guilty of stealing US$150,000 dollars earmarked for corporate social development projects.
According to the petitioner, the judgement and the punishment are too week to reform the convicted chief and also deter other recalcitrant law breakers from stealing public funds and assets.
He believes that the Bankahene deserves a stiffer punishment to serve as a warning and deterrent to others who are planning or in the process of stealing public funds.
The chief of Banka, a farming community in the Asante Akyem District of the Ashanti Region, sentenced to a jail term for three months, and fined for stealing community funds amounting to $150,000.
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Her Ladyship, Justice Gertrude Torkornoo
Chief Justice
Supreme Court of Judicature
Accra
Ghana
Petition for the Review of the Ruling of Justice Comfort Kwasiwor Tasiame: The Republic
v. Osabarima Twiampoma III – Suit No. 71/2012
Her Ladyship, when judges treat disparities in sentencing as business as usual without little regard for the law, it provokes public ire, thus subjecting the judiciary to intense scrutiny.
Evinced in the case specified above, it thickens the cloud of suspicion raising unanswered questions, prominently among them: What might have motivated Justice Comfort Tasiame to pronounce a ruling that bears the hallmarks of a travesty, notwithstanding the weight of the evidence against the defendant?
Her Ladyship, Justice Tasiame’s ruling undermines the judiciary’s fight against institutional corruption and abuse of authority. Furthermore, it complicates your effort to repair the public’s perception of the judiciary as a lair populated by judges whose verdicts a subset of the nation’s citizenry, particularly underprivileged groups, find disturbing.
The substantive matter in this case is stealing, i.e., a dishonest reception and misappropriation of a cheque of US$150,000.000 earmarked for development in Banka. Criminal Offences Act, 1960 (Act 29) defines the offence of stealing under Section 125 as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner.” In court, the prosecution proved the three elements required to establish stealing under Section 125 of Act 29: (i) dishonesty, (ii) appropriation, and (iii) property belonging to another person.”
In Kwashie v. The Republic [1971] 1 GLR 488 at 493, judges are urged to use the following criteria to determine the length of a sentence: “The intrinsic seriousness of the offence, the degree of revulsion felt by law-abiding citizens of the society for the particular crime, the premeditation with which the criminal plan was executed, [etc.,].” Justice Tasiame ignored these basic tenets.
By sentencing the defendant to a three-month prison term for stealing US$150,000.00, Justice Tasiame disregarded the foundational canons of deterrence. In The Republic v Adu-Boahen, [1972] GLR 70-78, the court noted that: “Where [a] court finds an offence to be grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one . . . to indicate the disapproval of society of that offence. Once the court decides to impose a deterrent sentence the good record of the accused is irrelevant [emphasis mine].”
Her Ladyship, in my measured assessment of the ruling, I ask the following question: What judge, given her education in law, and training if any, would sentence a defendant to “three months imprisonment [for stealing a cheque of US$150,000.00, which is an equivalent to GHC 24 million] and [impose] a fine 2,000 penalty units [which equals GHC 24. 000.00 to be paid to the State] [or] in default [order the defendant to serve] 5 years IHL [in prison with hard labour]?
On the scale of sentencing proportionality, and in settled law, the former, a larger sum of money, should attract a harsher punishment.
In Kamil v The Republic [2011] 1 SCGLR 300, it was the opinion of the court that judges weigh society’s interest vis-a-vis the defendant’s. The court further averred that while a judge in “passing sentence may consider the offence and the offender as well as the interest of society. . . every sentence [must] serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to th[e] country.” Justice Tasiame ignored the guidelines of the court.
Justice Tasaime’s rejection of the prosecution’s submission that the defendant return(s) the cheque to the rightful owners and her order the victims recover the cheque through a “civil action“ constitutes an absurdity. By denying the victims their right to the cheque, and allowing the defendant to keep proceeds from criminality, Judge Tasaime reduced the law to a compendium of passive letters. What I find disturbing about this order is that she did so knowing the victims do not have the resources to initiate such action. In The Republic v William Ato Essien, Justice Eric Kyei Baffour not only ordered the defendant pay back monies he misappropriated, he also reminded the court that the “maximum sentence [for] stealing . . . is twenty-five years imprisonment . . . under section 296(5) of the Criminal and Other Offences (Procedure) Act, 1960, Act 30.”
Her Ladyship, justice is a public good and remains one of the central linchpins of our constitutional democracy. The wrong perpetrated against the citizens of Banka by Justice Tasiame is a painful one. Without an exhaustive investigation into this matter, judges, like Justice Tasiame, will continue to trample on the rights of the poor, thus assaulting the pillars of justice, peace, and stability.
Justice Tasiame’s contention that her ruling was aimed at “send[ing] a signal to other chiefs that moneys [sic] meant for the community must be used as such” (p. 27, para. 1) is an insult to the dignity of the victims and Ghanaians. My knowledge of the law around deterrence tells me otherwise; I would advise Justice Tasiame to educate herself on the basic propositions of (specific and general) deterrence.
Her Ladyship, upon careful deliberation and extensive consultation, the victims would like to seek the relief below:
That Her Ladyship constitutes a committee of judges to investigate Justice Tasiame for
imposing a prison term, outside a range of punitive measures prescribed by law.
She should be sanctioned if found culpable.
Her Ladyship, Justice Tasiame’s ruling has harmful implications for the judiciary. The lack of action on this matter could further damage the social standing of an institution whose primary function is to fearlessly interpret the law to preserve peace and order. The time is now to do what is right and I am counting on your cooperation to address the deficits in the ruling of Justice Tasiame.
Thank you.
Sincerely yours,
Ben Appiah