The Supreme Court Complex

I took a break from my work with the Human Rights Advocacy Centre to spend the morning with Godwin Gyamfi, a former solicitor-advocate in England’s Crown Prosecution Service, now practicing in Accra.

We met outside Fast Track Court 5, in the Supreme Court complex; a far grander building than the Gender-Based Violence Court I had recently visited (see previous post). The courtrooms themselves also bear a much stronger resemblance to courtrooms at home than the shed like structure that is the gender-violence court. The complex houses the Supreme Court, the Court of Appeal, the Human Rights Court, the High Court, the Commercial Court, various criminal courts and the Financial and Economic Court. Unlike during my trip to the Gender-Based Violence Court, here I saw lawyers buzzing around in robes. Godwin even wore his wig (though he was the only person I saw doing so). Apparently wigs and gowns are mandatory courtroom dress, but this is routinely ignored.

The Fast Track Court, a criminal court, doesn’t quite live up to its name. Godwin was preparing for a murder trial here. His client, the accused, has been remanded in custody awaiting trial for the past 12 years. If he is found not guilty it is very unlikely he will receive any compensation from the state. This is alarming for many reasons. The chances of securing a conviction, and thus securing justice for the victim, surely decline as time goes on. Memories fade, witnesses move away or die, and a trial can collapse. More importantly, imprisoning someone on remand for such a lengthy time – a sentence in itself – makes a mockery of the presumption of innocence and efforts to ensure a fair trial.

Delay is the key reason for prisoners being remanded for such a long time. Hearings, as described in my last post, take place in a piecemeal fashion. It can take a long time for a courtroom to become available, highlighting a key problem with resources and capacity in the Ghanaian justice system. When a prisoner is placed on remand, the court issues a warrant of commitment, which authorises the prison to hold the person until their next court date. A court can only adjourn the case for 14 clear days while the person is in custody (Criminal Procedure Code 1960 (Act 30), ss. 169(2) and 186). This means that the warrant of commitment expires 14 days after the accused person is placed on remand. The reasoning for this is to ensure that prisoners are not forgotten, and that remand prisoners’ cases are rightly prioritised. However, in reality, remand prisoners are often held for months or years between court appearances on expired warrants.

I spoke to Godwin about other aspects of his practise. He described how moving from practise in the UK to practise in Ghana took some adjustment. Although the law and procedure is often the same, the ways in which courts work are very different. He noted that the piecemeal fashion of conducting trials, referred to in my last post, can be very frustrating and make it more difficult to build the crescendo of a case. He also described having to get used to the very different manner in which many advocates address each other and, indeed, the judge.

I noticed this in the case I shadowed in the Financial and Economic Court. The case concerned a shipping dispute, but at times it was difficult to hear what was going on as the various advocates in the case talked over one another. The judge looked very frustrated with one advocate in particular, who refused to take his cue from the judge and insisted on continuing even after the judge had said he understood the point and wanted to move on. I could understand Godwin’s frustrations.

The Gender-Based Violence Court

The Ghanaian government seems to be taking genuine steps to address issues of gender-based violence in the country. In February 2013 a new ministry for Gender, Children and Social Protection was created with a mandate committed to ensuring gender equality, the promotion and protection of children, and the empowerment of the vulnerable through social protection interventions. The current Minister with this portfolio is the founder, and former director, of the Human Rights Advocacy Centre, where I am currently volunteering.

There has been a push towards tackling violence against women and girls and violent acts against women and girls are criminalised in the Children’s Act, the Domestic Violence Act, the Human Trafficking Act, and amendments of the Criminal Offences Act. Customary servitude and Female Genital Mutilation (FGM) are also criminalised.

Despite these laws, women and girls in Ghana remain adversely affected by sexual abuse, physical violence, harmful traditional practices, child labour, and socio-economic violence. In 2011, the Domestic Violence and Victim Support Unit of the Ghanaian Police recorded 12,906 cases of various forms of violence against women nationwide.

HRAC recently carried out research into violence against girls in schools, which revealed that 52 per cent of girls surveyed had been victims of violence in school and 14 per cent had experienced sexual abuse. HRAC also carried out research into spousal murders, which revealed that two spousal murders are reported every month in Ghana.

However, as stated above, initiatives are being taken with the aim of combating gender-based violence. For example, there is now a Domestic Violence and Victim Support Unit within the Ghanaian Police, with 97 offices nationwide. Police, healthcare providers and social welfare officers now receive training in gender-based violence. There are also now two specialist gender-based violence courts: one in Accra and one in Kumasi. It was the Accra court that I had the opportunity of visiting.

The gender-based violence court is interesting in that it has both civil and criminal jurisdiction. Its focus is mainly, though not exclusively, on offences stipulated under the Domestic Violence Act 2007 (Act 732), including physical abuse, sexual abuse, economic abuse, emotional, verbal or psychological abuse occurring within the context of a domestic relationship. It also deals with gender-based violence cases arising outside of domestic relationships, including defilement, rape and indecent assault. Under its civil jurisdiction it deals with matrimonial and adoption cases.

The reasoning behind having a specialist court is the acknowledgment that sexual violence and domestic violence can often have a particularly harrowing effect on the victim and that justice should be served speedily and adjudicated by specialist judges.

I recently had the opportunity of accompanying one of HRAC’s Human Rights Clinic clients to the Gender-Based Violence Court. Her very young daughter is the complainant in a defilement case. Defilement, in Ghanaian law, requires carnal knowledge of a child under 16 years of age, with or without consent (s.101(2) Criminal Code, Act 29, 1960).

There were a number of things that initially struck me on arrival at court, aside from its very dilapidated state. The first was that, unlike any other court I’ve been to, there were no security guards or bag searches at the entrance. We just strolled in. The next thing that struck me was just how busy the courtroom was. The public gallery was packed. It was difficult for us to find a seat. Many cases are dealt with in a day and the defendants, rather than being in a dock, are all seated along the side of the room, in handcuffs, waiting for their case to be called. I noticed that one of the defendants was staring at me intensely for the entire morning. I wondered at the ability of someone to engage in a form of sexual harassment while waiting for his trial for gender-based violence to be called on.

I was surprised that all the day’s defendants were in court, along with their legal teams and many members of the public. Given that all the cases concerned gender-based violence, and actually all the cases I sat through that morning involved sexual assault on young children, I was surprised that the cases were heard in public at all.

I was also surprised by the way in which cases were listed. In the UK, of course, the preference is for a case to be heard as far as possible in one go, or at the very least over consecutive days without interruption. Perhaps an hour or so in the morning might be reserved for a judge to hear bail applications, but, by-and-large, once a judge and jury start to hear a case they will then continue to hear that case before starting on the next matter. In Ghana it is very different. In my few hours in court I must have seen tiny parts of seven or eight different cases. Each of those cases was part heard; a new witness was called; and then the matter was adjourned, sometimes for several months, before calling on the next witness. The reasoning for this appears to be a combination of (i) ensuring flexibility in order to encourage witnesses to appear; and (ii) making sure the trial at least begins expeditiously for the sake of both victims and remand prisoners. However, given that the trial can then last months, heard in extracts with week-long gaps in between, I wonder how expeditious this method really is. I also worry about the ability of the judge (there is no jury system in Ghana) to recall the facts and the evidence in each case, given it is so spaced out and so intermixed with other cases, often involving similar facts.

The first matter I heard was a sentencing in a defilement case in which the defendant had been found guilty of raping a five year old girl. The defendant stood quietly and was represented by his lawyer, who gave a very short plea in mitigation, which seemed to focus solely on the defendant’s young age. I was surprised that the lawyer in question didn’t make any other submissions in mitigation. The judge was robust in her answer. She stated that she found no mitigating factors whatsoever, and that as the defendant had abused a position of trust, and taking into account the very very young age of the defendant and the injuries caused to her, the offence was particularly aggravated. She commented that she was minded to impose a sentence of life, but instead imposed a sentence of 20 years with hard labour, less the one year the defendant had already spent on remand. There were gasps around the courtroom. This was the most severe sentence I have ever been privy to in a court anywhere in the world, including in cases of murder. It is sobering to witness a sentence like that being passed, no matter how heinous the crime.

Eventually our matter was called on. We had been concerned that our key witness, a doctor, had under cross-examination retracted all the evidence she had previously given in her medical report. We were therefore today waiting to hear if the defence would make an application of no case to answer, and if it would be accepted.

Unsurprisingly, the defence did make their submissions. The advocate emphasised the constitutional importance of the presumption of innocence, and the high burden to be met by the prosecution. The judge gave this short shrift, stating that this was not the time to make a closing speech. The question was not whether there was reasonable doubt, but whether the prosecution had made out a prima facie case. The trial would therefore continue. The matter was the adjourned for a week.

I was concerned to learn that the complainant, who is under 6, would give evidence. Trials involving such young children must of course consider their rights and it would be wrong to suggest their evidence should not be heard. What concerns me is the lack of guidance around how their evidence is put before the court. In the UK, a child's evidence in family proceedings would normally be obtained by a CAFCASS officer who would ascertain the views of the child. In criminal matters, careful consideration would first be given to whether the child was capable of giving coherent evidence, and the public interest (including the best interests of the child) in that evidence being heard. Any evidence would be given by pre-recorded video interview, so as to shield the child from the intimidating courtroom environment and, of course, prevent them from coming face-to-face with the alleged perpetrator. The proceedings would have to take into account the extensive Ministry of Justice guidance on obtaining best evidence. 

However, in Ghana is seems there is no guidance for dealing with child victims/witnesses. In cases involving a juvenile defendant, the case is normally heard in the judge’s chambers. In cases like defilement cases, where there is an adult involved, it is up to the judge to decide how to hear the evidence. This can result in children aged 5 giving evidence in open court, which as described above, might be full to the brim, noisy and intimidating, even for an adult. This is an area of concern.  

Family Law in Ghana

The Human Rights Advocacy Centre, as well as lobbying for political, policy and legislative change, also runs a clinic that provides legal assistance directly to members of the public. I had the chance to shadow one of the initial advice sessions.

For reasons of client confidentiality I cannot discuss the case in point here, other than in extremely broad terms. It was a matrimonial dispute and the session highlighted to me some of the difficulties faced by women in relationships that have turned sour.

Women in Ghana, who more-often-than-not occupy the traditional role of the homemaker, are often economically dependent on their husbands. They often have no independent means of income, have no bank account and no pension. This makes them very vulnerable in the event that a relationship comes to an end, or if they no longer wish to remain married owing to adultery, abuse or irreconcilable differences.

I was pleased to learn from HRAC’s lawyers, however, that Ghanaian divorce law does make provision of equitable division of assets on divorce. Ghana’s ratification of the UN Convention on the Elimination of Discrimination Against Women was instrumental in bringing about this change, and was heavily relied on in the landmark case of Mensah v Mensah J4/20/2011 (2012). This just goes to show the value of international agreements and obligations in bringing about domestic change. English case law was also, interestingly relied upon in that case.

Prior to Mensah v Mensah wives had to prove a substantial contribution to the acquisition of property in order to have any claim. The court’s conclusion in Mensah is a strong one:

“The Petitioner should be treated as an equal partner even after divorce in the devolution of the properties. The Petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted. The tendency to consider women (spouses) in particular as appendages to the marriage relationship, used and dumped at will by their male spouses must cease. Divorce as Lord Denning stated long ago, should not be considered as a stigma.”

The Court also stated:

“[C]ommon sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.”

However, efforts at ensuring justice for women in divorce may sometimes be frustrated by lack of access to justice. One woman I spoke to reported that she attempted to secure a divorce over five years ago through the traditional family-based means of resolving disputes. She reported that she was unable to secure the divorce at all, let alone on equitable terms, as her husband is a family elder and therefore commands a great deal of authority. The family-based system, she says, is biased against her.

This highlights a key issue in community based justice, and an issue that far from being a Ghanaian problem is repeated around the world. Last year, when I visited the National Law School in Jodhpur, India, the exact same problem was iterated by an advocate I spoke with there. This makes me think very carefully about how far we should, as lawyers, be advocating moves towards alternate dispute mechanisms to resolve disputes. I worry about the oversight of ADR, and whether the “weaker” party really can access justice – especially if the parties are unrepresented. It is something to bear in mind as mediation, particularly in the family sphere, becomes increasingly common. 

Aburi

On Sunday I decided to take a trip out of the capital. I headed to Aburi, a small town in the mountains about an hour inland of Accra.

Aburi is easily accessible from Accra and takes only around an hour by tro-tro from Medina station. The trip costs 3 cedi (60p) each way.

I arrived in Aburi early. It’s a sweet little village that, with its views back to Accra, temperate climate, and lush vegetation, reminded me a lot of the hill stations I visited in India. After ambling around for a little while and taking in the slightly cloudy view back to the city, I jumped in a share taxi to the village of Mampong in order to visit Tetteh Quarshie Cocoa Farm, the first cocoa farm in Ghana (now the world’s second largest cocoa producer). The farm is very small and the 10 cedi (£2) entrance is probably a little steep for the tiny tour. However, it was worth it for me to get my first ever taste of cocoa straight from the pod.  The ripe orange pod was cracked open by the farmer with a machete. The pods inside were, to my huge surprise, white and fluffy – like little pieces of cotton wool. I took one and bit into it – only to be laughed at by onlookers for being foolish enough to bite into the bitter cocoa pod. It didn’t taste good. I was then told I wasn’t supposed to bite it, only to suck it. I tried again. This time it was delicious. Sweet and fruity tasting, a bit like a strawberry. Very unexpected!

Next, I headed back to Aburi this time for a wander around the botanical garden. Hundreds of different kinds of trees were scattered around the park, each neatly labelled with helpful information. My favourite was the vine that had grown up around a tree and had gradually taken it over. The tree was completely hollow – I even stood inside it and was able to look right up and out of the top. 

The Golden Tulip, Mamma Mia and the Alliance Français

By Saturday I was in need of some rest so decided to spend the day at a pool where I could swim safely (La Beach is not recommended for swimming owing to strong currents and rip tides). Most of Accra’s hotel swimming pools are open for day use for a fee. I headed to the Golden Tulip, not far from 37 tro-tro station.

The Golden Tulip’s pool is calm, uncrowded and very clean, and the changing rooms are immaculate. At 40 cedis (£8) for day use, it is a bit on the pricey side but worth it if you are spending the whole day there. There is a menu with plenty of choice of food and drink for those who spend all day (prices range from 20 – 70 cedis). There are also sunloungers to relax in with a book, and towels are available free of charge.

Next I headed into Osu to meet some colleagues for dinner. Needing a break from red red and plantain, we headed to Mamma Mia, Accra’s best Italian restaurant, for delicious thin-crust pizza (around 30 cedis / £6) and mouth watering fresh lobster, prawns and calamari (70 cedis / £14).

Afterwards, as the Alliance Français had been such a success on Friday night (see previous post), we headed back there for a hip-hop concert, featuring artists from all over Africa. It blew away all expectations.

Friday night’s entertainment had been upbeat and fun, but pretty mellow and not too crowded. I had been expecting the same thing on Saturday, but was hugely mistaken. The place was packed out. You could barely move for people bouncing up and down with excitement. We had been expecting a showcase of relatively little known artists. It turned out that the line up featured some of Ghana’s, and indeed Africa’s, biggest contemporary rappers. Everyone knew the words. Girls were screaming with excitement.

We could soon see why. The quality of the hip-hop on offer was great. I will definitely be looking up some of the artists on Spotify when I get home. E.L., Gemini, Shaker, M.anifest, Sarkodie, Sargo, Kojo Cue, PK and C-Real are a few names I will definitely be taking away with me.

Alliance Français

This weekend I sought out more live music, this time heading to the Alliance Français on Friday night. AF Accra hosts occasional music performances which, being carefully selected, don’t disappoint.

The AF is both a restaurant and a concert venue, with amphitheatre style seating arranged around a reasonably sized stage. Friday’s cover, at 10 cedi (£2) was a bargain, and the music was great.

Two bands were playing, Akablay and Zohzoh. Akablay, a guitarist, is a Highlife musician who blends west Ghanaian music with east African rhythms. He was great, but it was Zohzoh who stole the show. Zohzoh’s up-tempo grooves, complete with dancers, filled the place with energy. The music was a blend of Fela Kuti inspired Afrobeat and James Brown style funk. In no time at all everyone was dancing – including myself, broken ankle and all. 

Away Day in Gomoa-Fetteh

Friday was HRAC’s office away day – an opportunity for all the staff to get together for team building activities and discuss the future direction of the organisation. In reality, much more fun was had than work. That’s probably no surprise given that the venue for our teambuilding was Tills Beach in Gomoa-Fetteh, about an hour and a half’s drive west of Accra:*

 The beach is pretty spectacular and we spent the morning eating almonds and coconuts straight from the tree and messing around on the beach, before all sitting down together for lunch. I had my first experience of banku. Banku is a sort of dumping made from fermented maize, eaten with a variety of sauces. It as an overpowering fermented-sour taste that, I’m afraid, is not entirely to my taste. I washed it down with a delicious fresh coconut.

During the afternoon we split into teams and worked together on team building activities, including building very unsuccessful miniature structures from pieces of paper. It’s a good thing we’re human rights specialists and not required to involve ourselves in artistic or structural endeavours:

We also discussed how the organisation can function better. Lots of ideas came out, including fostering more collaborative work between permanent staff and volunteers, and allocating people to specific projects for the duration of their time at HRAC, in order to develop skills and really make good use of people’s time. There were also concerns voiced that once volunteers leave, the work they have done also disappears, and that it was important to develop a way of ensuring the sustainability of work carried out.

*Visitors should be advised that there are strong rip tides here. Ask local advice before swimming