J. Atsu Amegashie
November 19, 2015
Ever since Ghana’s leading investigative journalist, Anas Aremeyaw Anas, released a video of corruption in the judiciary, he has come under relentless attacks by some Ghanaians, the most prominent being “citizen-vigilante”, Martin Amidu. Mr. Amidu has, among others, accused Anas of being a criminal, operating an illegal business, being a covert government agent, suppressing a parliamentary video on corruption, selectively targeting the judiciary, and being motivated by money.
In this piece, I shall focus on only one of Mr. Martin’s claims. According to him: “What Anas has done makes him a criminal. How can Anas be allowed to do a comprehensive investigation and set up hidden cameras in Ghana?”: http://www.starrfmonline.com/1.8434840
For several years, Anas has been exposing corruption by secretly recording people: Accra Psychiatric Hospital, ECG, CEPS, DVLA, Cocobod, Osu Children’s home, and many more. It is puzzling that Mr. Amidu did not question the legality of secretly recording people in any of these cases. But let me set that aside and address his point from a different angle.
In one of his articles, Martin Amidu cited the investigation and conviction of a corrupt US judge, Abel Lima, who over a 14-month period beginning in November 2007, was tracked by FBI investigators who “… used court-authorized wiretaps to listen to his phone calls and learned what he was doing.”: http://www.dailyguideghana.com/amidu-again-govt-could-have-investigated-judiciary-without-fraudulent-anas/
If one listens to Martin Amidu carefully on this point, he seems to suggest that secretly recording people without being authorized by a court is necessarily illegal. This was why he opined that “What Anas has done makes him a criminal. How can Anas be allowed to do a comprehensive investigation and set up hidden cameras in Ghana?”
In my opinion, his argument is very weak. First, he fails to recognize that Anas has not secretly recorded people in private matters. He has done so in matters of public interest. Rights to privacy come with social responsibilities. For example, an HIV patient loses his right to privacy if acts in a socially irresponsible manner on the basis of his HIV status (e.g., if it is shown that he deliberately hid his HIV status AND had unprotected sex with people). The public then has the right to know about his status. We know that there are sex offenders’ registries in certain countries. In the extreme case of the United States, the sex offenders’ registry is publicly accessible (no right to privacy); all other countries (that have these registries) restrict them to law enforcement agencies. Martin Amidu’s counter-argument may be that in these cases, the loss of privacy is legal. But this does not change the argument that the right to privacy is not sacrosanct and be weakened to serve a public purpose. In fact, Martin Amidu has justified his violation of his ministerial oath of secrecy on the ground that by exposing the actions of a corrupt NDC government, such violation serves a useful public purpose. According to Martin Amidu:
“I swore the oath of secrecy to protect the Constitution of Ghana, not the President of Ghana. If the President is committing [a] crime and acting unconstitutionally, Article 3 supersedes whatever oath I took as a member of Government.”
Of course, it is for the courts to decide whether Amidu’s violation of his oath of secrecy is justified. The same courts will decide, if necessary, whether Anas has violated the law.
Second, if there is anecdotal evidence of corruption in the judiciary, do we always need a court order to secretly investigate judges? What if the court refuses to authorize wire-tapping of phone calls, the use of hidden cameras, etc? Or what if the court gives this authorization but alerts the judiciary about an investigation? Then it will be impossible to fight corruption in the judiciary in view of the fact that the judiciary has not demonstrated that it can independently — through its own initiative — collect evidence of corruption in the judiciary and punish corrupt judges. The probability that a court will refuse to authorize wire-tapping of phone calls of judges or secretly recording judges depends on the scale of corruption in the judiciary in a particular country. Clearly, the social context matters and so the application of legal principles in a social vacuum is not sensible. Ex post, there seems to be some evidence, albeit inconclusive, that while there are many honest judges in Ghana, the proportion of corrupt judges is not negligible.
Third, Martin Amidu’s fears of an Orwellian or police state are exaggerated. There are still checks and balances. For example, in the case of the judiciary, neither Anas nor the executive arm of government can unilaterally sanction a corrupt judge. The judiciary still plays a significant role (i.e., the ongoing proceedings of the judicial council). In fact, one judge has been “acquitted” by the judicial council on the ground that Anas’ evidence was weak. In the case of agencies such as CEPS, DVLA, ECG, etc, they fall under the direct control of the executive arm of government, which has the right to monitor and discipline them. However, the government cannot bring criminal charges against them without due process but can discipline them administratively.
On the preceding point, I think that the separation of powers in a democracy makes it difficult to justify the government use of Anas’ services to carry out undercover investigations of parliament and the judiciary. Anas has, however, denied any involvement by the government in his work on the judiciary. Given that ordinary citizens were able to bribe some of these judges and these judges accepted meagre bribes (i.e., 4000 cedis, goats, etc), I do not see why Anas could not have carried out this investigation without the assistance or connivance of the government. Furthermore, no appellate or supreme court judges or judges in high-profile cases like the Tsatsu Tsikata GNPC case or Ghana@50 case were targeted. In the absence of contrary evidence, I choose to give Anas the benefit of the doubt especially when there is no evidence that Anas targeted judges who may be described as anti-NDC judges.
Notwithstanding my arguments, I am sympathetic to a view expressed by Martin Amidu in one of his articles. It leads me to ask “why would a government with agencies like the Bureau of National Investigations (BNI) and the Criminal Investigations Department (CID) hire a private investigator?” Is this an admission of a lack of trust or confidence in its own agencies? Is it then not an admission by the government that it has failed? I can, however, imagine these government agencies (i.e., BNI and CID) hiring Anas to train their personnel or using him as a consultant.
Judicial corruption may be rare but is not uncommon. Martin Amidu cited the US case of judge Abel Lima. In a paper titled “Attacking Corruption in the Judiciary: A Critical Process in Judicial Reform”, by Dakolias and Thachuk, the authors cited, among others, the following three cases:
(1) “In Venezuela, a judge was found with money in her panties after demanding payment from a lawyer”, (2) “In 1991, eight members of the Bolivian Supreme Court were charged with corruption”, and (3) “One judge from Argentina was removed after being caught on camera taking a bribe.”
In August of this year, the Gujarat High Court of India suspended two judges who were caught on camera while allegedly “settling money” over phone. Cameras were placed in chairs and below their tables in their offices. The investigation was carried out in August 2015 following a complaint by a private citizen and lawyer, Jagat Patel, who placed a spy camera and an audio recorder in the chairs and tables of the accused judges between February 2014 and April 2014 on a daily basis.: http://indianexpress.com/article/india/gujarat/gujarat-hc-suspends-two-judges-after-bribe-talk-is-caught-on-camera/
It is noteworthy that in the Indian case, the world’s largest democracy, a private citizen secretly recorded the judges and then used the evidence to lodge a complaint — what is known in India as a First Information Report (FIR) — against the judges.:http://indianexpress.com/article/india/gujarat/gujarat-hc-suspends-two-judges-after-bribe-talk-is-caught-on-camera/
In India, any person who is victim of an offence or who is a witness to any such offence or who has knowledge about the commission of any such offence can lodge a First Information Report (FIR) at a police station. In case of a refusal by the police to record the FIR, the person can file a private complaint before a court having jurisdiction. The court can direct the police to investigate the case. But based on my reading of the aforementioned case in India, the investigations were conducted by Vigilance Department of the High Court. If so, then unlike the courts in Ghana, the courts in India have the resources and institutional capacity (i.e., the Vigilance department) to conduct undercover investigation of judges.
I suspect that Jagat Patel did not have a court order to secretly record the judges and under India’s First Information Report (FIR), this action was legal. If we are serious about fighting corruption, our courts should support this type of anti-corruption effort. If the executive arm of government cannot investigate the two other arms of government unless it is authorized by the courts to do so, then exposing corruption in these arms of government is, in some case, the job of only ordinary citizens. It will then be preposterous to require that an ordinary citizen must ask for an authorization from the judiciary in order to secretly investigate the judiciary.
Having defended Anas against Martin Amidu’s attacks, let me conclude by noting that in view of Anas’ mentor, colleague, and very close friend, Kweku Baako’s public pronouncement that a video on parliamentary corruption, albeit incomplete, exists and that it will be released next year, I think that Anas’ credibility is at stake if he does not publicly release a video on parliamentary corruption sometime in 2016.
Dakolias, M., and Thachuk, K. (2000). Attacking Corruption in the Judiciary: A Critical Process in Judicial Reform. Wisconsin International Law Journal, 2000.