OF THE ANAS VIDEO AND MATTERS ARISING

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This note seeks to discuss two issues: (1) the nature and scope of the job of the Disciplinary Committee of the Judicial Council (the Committee) which is tasked with hearing the 34 judges and magistrates caught on the Anas vidoe (2) the operation of the rule against double jeopardy in respect of administrative matters.

The Difference

There’s a difference between disciplinary proceedings and criminal proceedings. The difference is not just nominal and formal. It is also substantive. Here are some of the differences:

Disciplinary proceedings usually take place before quasi-judicial bodies, while criminal proceedings cannot take place outside the judicial (court) system.

Disciplinary proceedings touch on matters of ethics, etiquette, values, norms or soft rules, large body of which are inferred, deduced rather than expressly or exhaustively listed in writing. Criminal proceedings, on the other hand, entail prohibitions that are expressly and exhaustively defined in writing with sufficient precision. If it is not written in law, it is not a crime.

Most importantly, the standard of proving an allegation in disciplinary proceedings is not necessarily ‘beyond reasonable doubt’. In criminal proceedings however, the prosecution is required to prove the allegation to the extent that a reasonable mind will be left without a reasonable doubt that the accused person did commit the crime.

The Committee’s Job

The proceedings currently going on before the Committee are not a criminal proceedings, of course. What this means is that the issues that the Committee will be determining are issues of ethics, values and those other soft rules that are meant to keep judges and magistrates and the administration of justice above reproach, ridicule or disrepute.

In other words, the Committee will be determining, mainly, whether it’s proper for a judge to behave in the manner that, though not in violation of a criminal law, these judges have behaved in the videos. The Committee will, in substance, be telling the people of Ghana (from whom justice emanates) whether, having behaved in the manner that we saw in the videos, the named judges are decent enough to continue to adjudicate over people’s disputes.

In doing this, the members of the Committee are not to subject the named judge to the rigours of criminal proceedings. Similarly, the standard of proof at the Committee’s hearing is not to be raised to the level of ‘beyond reasonable doubt’.  As a matter of fact, the members of the Committee need not infest their minds with the criminal laws. They only need to keep their focus on the standard of behaviours expected of judges and magistrates.

In finishing its job, the Committee, for instance, needs to primarily remember the hallowed words of Hewart CJ, when he said that it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The Committee only needs to decide whether, by allowing the named judges to resume their duties, persons who submit disputes to them to adjudicate upon, could go home satisfied that justice will be or has been done, irrespective of whether justice was actually done.

Two other Issues

The above explanation leads us to two other issues that have come up in all this. First, whether subjecting the named judges to criminal proceedings even after the disciplinary proceedings will amount to double jeopardy. And, second, the ‘criminal trial approach’ that has been adopted by some of the lawyers who represent the named judges before the Committee. For reasons that may not find space here, I’ll desist from discussing the second.

The Rule against Double Jeopardy

The rule against double jeopardy says that a person must not be vexed twice for the same wrong. Stated more accurately, the rule says that a person must not be prosecuted again after a legitimate and final prosecution for the same offence, whether or not he’s found guilty. The relevant elements in the rule, therefore, are: (1) that there has been a prosecution; (2) that the prosecution was legitimate; and (3) that the prosecution was final. It is irrelevant that the person was acquitted or convicted.

It may be seen from this explanation, therefore, that the mischief sought to be avoided by the rule is double trial and double conviction, not necessarily double punishment (note that conviction is a subset of punishment). In fact, in one case (and the cases on this are many), the court held that “the constitutional prohibitions against double jeopardy and double punishment do not prevent the legislature from enacting, and the executive from enforcing, civil as well as criminal sanctions for the same conduct.”

I’ve already explained the substantive difference between criminal proceedings (prosecution) and disciplinary proceedings. From that explanation and the one on double jeopardy, it may be pretty clear that a person will not be entitled to the plea of double jeopardy if he is subjected to criminal prosecution after a disciplinary hearing. What I’m actually saying is that my reading does not tell me that by going through the disciplinary proceedings the named judges cannot be subjected to subsequent criminal proceedings should the need arise. As a matter of law, they may be prosecuted first and disciplined subsequently or disciplined first and prosecuted subsequently.

Conclusion

What bothers me in all this, however, is the loud silence of the office of the Attorney-General on what it has done, what it is doing and what it intends to do in all this.