Ghanaians deserve accurate and legally sound commentary on the issue, he admonished.
The Police Tuesday picked up Mr Anyidoho for warning President Nana Akufo-Addo that he could suffer his father’s fate and be removed from power through a coup.
“History has a very interesting way of repeating of itself,” he stressed in a radio interview.
Whilst at a press conference - a prelude to a planned street protest - the former Presidential Communications Director was picked up by the police.
He has been charged with causing fear, alarm and treason felony and is in detention at the Bureau of National Investigations (BNI) in Accra.
Commenting on the earlier charge of treason on Joy FM’s Super Morning Show Wednesday, a private legal practitioner, Mr. Martin Kpebu, said “to be very candid with ourselves, this doesn’t constitute treason in any way.”
For the offence to be sustained, Mr Kpebu said the police must prove both, intention, (in this case, to stage a coup), and an act, staging a coup. This is what lawyers call actus reus and mens rea.
“He must have done something to further his intention to do something. So you may say, yes, he said there will be a civil coup d’état but what has he done to further it?
Mr Kpebu said there was no such act.
“Which serious coup maker will go and expose his plans ahead of time,” he asked.
He believes the conduct of the police was completely misplaced and needless and will lead nowhere.
Kojogah Adawudu, counsel for Mr. Anyidoho, who also spoke on the Super Morning Show, expressed frustrations over the refusal of the police to grant the politician bail.
He was particularly disturbed that the police did not give reasons for refusing the suspect bail.
Speaking to the controversies surrounding the issue, Samson Lardy said “It is not only complete offences that are punished.”
In Ghana’s jurisprudence, he said inchoate offences - offences that are not complete – are punishable to the extent that “there is an attempt to commit the offence and there is preparation to commit the offence.”
He said Mr Anyidoho has been charged under Article 19 (17) of the Constitution which states that “Subject to clause (18) of this article, treason shall consist only-
(a) in levying war against Ghana or assisting any state or person or inciting or conspiring with any person to levy war against Ghana; or
(b) in attempting by force of arms or other violent means to overthrow the organs of government established by or under this Constitution; or
(c) in taking part or being concerned in or inciting or conspiring with any person to make or take part or be concerned in, any such attempt.”
Mr Anyenini said particular attention must be paid to the last paragraph (c) of the Clause.
He later wrote on his Facebook wall: “It’s okay to evaluate the material facts of a criminal charge and make an informed professional legal opinion that the charge(s) will fail. But it is wrong to insist that a charge will fail because the prosecution cannot prove mens rea (intent) and actus reus (actual act) simpliciter. So that “[t]he test to determining attempt is the intention of the person to commit the offence.
"Intent of the person is the determinant factor for the offence of attempt and is only mens rea of attempts.' Yes, '[t]he mens rea shall be proved in addition to the actus reus to meet the standard burden of proof in criminal matters. Apart from inchoate offences, offences involving omission to act and offences which are crimes of negligence, no valid conviction can be made without actus reus'. - Justice Dennis Adjei’s Contemporary Criminal Law in Ghana. Our criminal law punishes both complete (substantive) and incomplete (inchoate) offences. Inchoate offences (the attempt or preparation) are also punishable and even attract the penalty for the commission of the actual offence.
"In R. v. Mulcahy (an Irish case) Willes J. said; 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, THE VERY PLOT IS AN ACT IN ITSELF, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.' Emphasis mine. Quoted by KORSAH C.J., (sitting with VAN LARE AND AKUFO - ADDO JJ.S.C) in STATE v. OTCHERE AND OTHERS [1963] 2 GLR 463-531.”
On the issue of bail, he said the police are not obliged to give reasons for refusing bail, neither is bail automatic.
He maintained bail is discretionary and even though the Supreme Court has ruled that no offence is non-bailable, it remains the decision of the judge, whether or not to give bail.
Read Full Story
Facebook
Twitter
Pinterest
Instagram
Google+
YouTube
LinkedIn
RSS