Court Rise with Martin Kpebu- Episode 4

Hello, and welcome to another episode of Court Rise with me, Martin Kpebu. It’s a delight to be here, and as I always say, for God and country.

Today, we are going to deal with the matter of the meaning of a lawful command. Lawful command in the context of the military. We’re looking at section 22 of the Armed Forces Act (Act 105). The lawful command also has other names such as “obey before you complain” or “superior orders”.

Yes, so that is something you often hear even when you’re not a soldier or an officer of the Armed Forces. You know, this subject has percolated into civil law, that’s amongst us as civilians. So even in the workplace, you find it, you hear “these are superior orders”.

You remember in the last episode, Episode Three, we dealt with the case of George Akpass versus Ghana Commercial Bank, where Mr. Akpas said some of the conducts he was involved in were superior orders. But the Supreme Court didn’t uphold his submissions because the Supreme Court said the command has to be lawful. Because Mr. Akpass was saying he did some of those conducts under the instructions of his manager, who was his superior.

But the argument didn’t fly because those conducts were not sanctioned by the bank. That’s to say, illegal conduct. You cannot use “superior orders” to get somebody to do or engage in illegal conduct or breach the law.

So today, that is a subject matter. But today’s one is focused on the military and we are focusing on the military for good reason. Let’s give this background.

You remember not too long ago, soldiers of the Armed Forces went to Ashiaman. About 138 soldiers, and brutalized our fellow citizens in very dehumanizing fashion. It’s so sad to recall. You remember some of these citizens were poisoned, that is in the form of being compelled to drink water from gutters. They were lashed, etcetera. Parliament subsequently went into the matter and there’s a report out that has indicted the military, right?

Now, apart from that case, last year (2023), there was another case that went to the Supreme Court. It’s called the Republic versus High Court, Cape Coast, Ex-parte, Brigadier General Augustine Asiedu. We will go into details of it, but just at this introductory stage, let me mention that Brigadier General Augustine Asiedu went with 20 soldiers to go and intimidate his rivals in a chieftaincy contest. Yes, he wants to be chief and there’s an opposing faction, so he went with these soldiers who followed him to go and intimidate the people.

And the long story short, the matter ended in the Supreme Court and the Supreme Court made very damning findings against Brig General Augustine Asiedu. So we will come into those details.

Then there’s also the case of Yaokumah versus the Republic. That is a case that went to court and the soldier involved is a MAJOR. Can you imagine? Quite a senior person in the army, was found guilty and so his argument about superior orders didn’t fly.

Then there is a fourth case, also in the Assin area. This is also another contest involving a military man or a military officer and a civilian, another person. He also went there with a soldier to help him and it also resulted in a court action against the senior officer and the junior person he took along. Yeah, so having laid the foundation or having laid the background, you see that it’s imperative that we give some education on this matter.

Yes, this is a subject that has received attention even at the international level. You hear the Nuremberg trials. Yes, those trials were conducted after World War Il to hold people accountable for some of the excesses of the German and other forces  after World War Il.

So, these are the cases that give the impetus for us to discuss this subject today.

So now, let’s start with Section 22 of the Armed Forces Act 1962, (Act 105). This is what it says. “Disobedience of lawful command”. That is the heading.

Disobedience of lawful command.

A person who disobeys a lawful command of a superior officer commits an offense and on conviction is liable to imprisonment for life or to a lesser punishment provided by this Act.

That is it.

For emphasis, let’s read again-

A person who disobeys a lawful command of a superior officer commits an offense and on conviction is liable to imprisonment for life or to a lesser punishment provided by this Act.

So that’s the basis.

It makes it clear that a junior person, that’s junior to the person giving the instruction must obey only a lawful command. This is to say that if a superior officer gives a command to his junior, that junior must ensure that he’s certain that the command is lawful before he obeys it. So, you see why we are saying that things like “obey before you complain” cannot be totally right. It can’t be, because the law says obey only “a lawful command”. It follows that if the command that comes is not lawful, you can complain.

This is very important because as I mentioned earlier, you see the case of Brig Gen Augustine Asiedu with 20 soldiers who followed him and now look at the mess they are in; having followed a senior officer, a superior officer. We’ve also mentioned the Ashiaman case, 138 soldiers.

And when we say “soldiers”, please I’m not being technical here. You know, for us civilians, when we say “soldiers”, we mean every military person. Though technically, we know that when you read the Armed Forces Act, the “soldiers’ are usually the junior ones and the “officers” are senior. But l’m not a technical person.

So, from time to time, I may say “soldier” and by saying “soldier”, I’m referring to all of them. We are civilians. I’m sure everybody knows that as soon as we say :soldier’, even the CDS, we are referring to him as “soldier”.

We are lay persons. We are allowed to, right? So please understand me in that context. When you hear me, maybe I may mention Augustine Asiedu and say he’s a soldier.

Meanwhile, truly, he’s an officer. He’s not a soldier. But I’m a civilian and so you can pardon me for that and also, we are doing effective communication. I’m communicating with you and we all understand “soldiers” to mean “every military person”. So that is it. Effective communication rather than insisting on technical terms and technical jargons. Great.

So now let’s go into Brig Gen Asiedu’s case to see what happened. Now briefly, this is a case, as I stated earlier, in which Brig Asiedu was involved in. It is a chieftaincy matter. He wants to be chief of Assin Atandenso. His family is The Aseni family of Nyankumasi Ahinkro.

Now fast forward, that was, as I mentioned, it’s a chieftaincy matter. So, it went to the chieftaincy tribunal. When we say chieftaincy tribunal, there are different types of them. There’s the Judicial Committee of the Central Regional House of Chiefs.

Every region has a regional house of chiefs. Beneath it, you have the Judicial Committee of the  Traditional Council, et cetera. And then also at the top of it, you have the National House of Chiefs. Now this particular matter went to the Judicial Committee of the Central Regional House of Chiefs.

 

Fast forward, you know, because the House of Chiefs is not a full court, there are certain matters, once you are not happy from the House of Chiefs, you can go to the High Court for what we call supervisory jurisdiction. Yeah, from the word supervise, so the High Court is a full court, so it supervises. Let’s use that lay term. I’m using it loosely. There are certain things that if the Judicial Committee of the National House of Chiefs, and Regional House of Chiefs engage in , that’s something which is not proper according to law in the chieftaincy dispute, the parties can complain about. Thus for some of the breaches, you are allowed to go to the High Court to complain about that conduct.

I’m using the word “complain” loosely. But lawyers know how to put it together. I don’t want to use the technical terms. So, if the High Court finds that what is being complained about is true-it’s illegal, the High Court will correct it. And from there, there are also the other fora for addressing chieftaincy issues, that’s the National House of Chiefs, etc.

But here, the matter before the Supreme Court was that Brig Augustine Asiedu complained that the matter that had come to the High Court was one for which he didn’t agree for the judge to go into the matter. Because he said the judge was biased. So, he petitioned the Chief Justice against the judge. Ultimately the bias case failed. But what we are looking for is that he petitioned the Chief Justice, and so because at the time he was coming to the Supreme Court, the Chief Justice hadn’t dealt with the matter, Brig Asiedu took the matter to the Supreme Court, that the Supreme Court should also supervise the High Court judge. So, though there are some technical terms, you hear prerogative writs, certiorari, prohibition, etc.

So his case was that the High Court judge is biased against him. But because the Chief Justice had not yet dealt with the matter, and he had apprehension that the High Court judge, Justice Malike Awo Woanyah, was going to go ahead with the case, then he came to the Supreme Court so that he would get an order to stop the High Court judge. So that the Chief Justice can go into the matter. So that is why the case came to the Supreme Court. So, you see that in this case, he’s looking for something from the Supreme Court, prohibition, to stop the High Court judge. So that’s a form of what? Supervision. Yes, that’s it. As I said, let’s make it loose so that we can understand what is at stake rather than the technical terms.

So once the Supreme Court seized the matter, the court now saw the matters of “the lawful command.”  That is where these issues are coming up. So, let’s remember that the case before the Supreme Court was not about whether there was a lawful command or not. No, that wasn’t it. Brig Asiedu had come to the Supreme Court to get orders to go and stop the High Court judge from dealing with his case in Cape Coast High Court. But in the process, the court is allowed, once the court sees things in the case that are very disturbing, the court can use the opportunity to address them. And so that is how come the court now looked at these issues of the conduct of Brig Asiedu, yes, and so that’s important.

So remember that because what was before the Supreme Court was not about the contempt case, you see, the contempt case was what was pending in the High Court. But the Supreme Court did not have the contempt case. So, everything we are saying here, we are not saying he is guilty of contempt to anybody. No, we are giving education. This Supreme Court judgment is a judgment by itself, so all I can do is to warn you that everything we are going to read that the Supreme Court said, the Supreme Court didn’t find him guilty, because the contempt case was not before the Supreme Court. It was prohibition. He wanted to stop the High Court judge. But the papers they brought there made the Supreme Court see other things that were disturbing. And those are the ones we are discussing. Because the Supreme Court pronounced on them and said, but we have not said he is guilty of contempt, when it comes to contempt, let the matter go back to the High Court. The High Court will deal with that differently. Yes, so please, with this clarified, we go into the matter.

So, because Brig Asiedu went to the town with the 20 soldiers, the Supreme Court was not happy at all about it, so this is what the court held from paragraphs 25. Says:

“As the highest court of the land, we cannot rest this delivery without placing on record our observation of the conduct of the applicant, we notice from the affidavit evidence of the interested party that the applicant’s conduct constitutes an abuse of his highly revered public office. We have taken notice of the fact that the applicant is a Brigadier General of the Ghana Armed Forces, he is also the Director General in charge of training at the Ghana Armed Forces. Thus he is no mean person. But a senior officer who directs and supervises the training of members of the Armed Forces”

Listen again, the next paragraph, it says,

“Upon our review of all the processes filed and the conduct of the applicant at the trial court, while we do not question his right to pursue his aspirations of being the paramount chief of his traditional area, we need to emphasize that as an occupant of a high public office in the Armed Forces, he cannot deploy the machinery of the Armed Forces, and for that matter, privileges accorded him by the state, as a senior army officer of the rank of a one-star general, to the disadvantage of his opponents in a private matter, and thereby subvert the due process of the law, through intimidation.”

So then go on to the next, the Supreme Court said in paragraph 27, we state without equivocation that persons of the kind of applicant, must not be allowed to take advantage of their public office, in order to advance their private ventures, whether commercial, social, or customary. So after that, the Supreme Court addressed everybody in Ghana, that’s paragraph 28, saying that the Chief Justice, CDS, etc., everybody lives under the rule of law, and so no person is above the law. So you see that all of that’s reinforcing the point that the law here  is section 22, which talks about disobedience of lawful command. So a junior officer, is only obliged to obey a lawful command; not an unlawful one. We’ll soon come back to the Supreme Court judgment, where they refer to those 20 soldiers. They followed their senior, and today, all of them have been found to have behaved illegally, and so that is the context of this matter. Maybe we should just finish this case at once, before we go to the Yaokumah case.

So let’s read one more paragraph, about the fact that everybody must live under the law, it says that,

29. With specific reference to the applicant herein, a senior member of the Ghana Armed Forces, the Armed Forces Act 1962, (Act 105), specifically prohibits any conduct, which will blight its name; and bring the name of the service into disrepute.

Then after that, they read the section, section 32, which says, don’t do anything that brings their service into disrepute, and then previously, the one that says that everybody, the Chief of Defense Staff, everybody lives under the law. Because sovereignty resides in the people of Ghana, and so public officers are to administer the law on behalf of the people, and not to take the law into their hands. So, look at the final paragraph, 32, reinforcing Supreme Court’s deprecation of the conduct of the applicant, that is to say, Brig Augustin Aseidu. It says:

“32.Therefore, without prejudice to the pending contempt application, we note with great concern how the applicant, who is of such senior status in the military, will abuse his office with the support of his junior ranks in a contest for a traditional position. To say the least, his private interests ought to be segregated from his office. The manner in which the applicant and the other soldiers in uniform, armed with assault rifles as depicted in the exhibit D series, (which the applicant admits per his response to the contempt application), is disturbing in a developing constitutional democracy such as ours. This is even more so when the situation involves a senior officer of an institution such as the Ghana Armed Forces, where discipline is the cornerstone of its existence.”

 

Great. So, you hear it. So, it’s not in doubt at all. Brig General Augustine Asiedu himself admits the pictures. So, the soldiers were snapped pictures when they went there to undertake that exercise; intimidate the citizenry, et cetera. So, there were pictures of those soldiers.

And Brigadier Asiedu did not deny it. He admitted it by his response to the contempt application. Right, that yes, he brought the soldiers. So that is how come we are giving this education, so that junior officers are empowered that, hey, if you follow a senior officer, you may follow him into a ditch, like what has happened in this case.

Yes. Because you know, once this matter has come to the Supreme Court, the next thing you know, they can also be called before the Court Martial and disciplined, because that is our law. Because once this matter has gone before the Supreme Court and there are pictures of the soldiers, the next thing you know, the Armed Forces may take it up and those soldiers will then face more disciplinary measures.

So that is how come we must give education, educate ourselves that it’s not everything a senior officer says you should do that you have to do as a soldier or as a junior officer, because it’s only the lawful one that you are required to obey.

Now, so apart from this case, let’s go to the case of Yaoumah versus the Republic. So that is a case in which a soldier was found to have taken uncustomed goods. So, the facts of that case are that the soldier requisitioned a car from the Burma Camp and he drove the car to the Accra-Aflao Road, got to a point, stopped it, went into the bush, and then took what we say uncustomed goods. So, goods that he didn’t pay duties on. And by the way, this case was 1976.

So, it must have taken place earlier. This is a 1977 report. So, it’s a few years earlier because he went through the Court Martial before coming to the Court of Appeal. So, he put those goods in the vehicle and asked the driver to drive back. So, he being a major, Yaokumah was a major, he had a driver to drive him. On their way back, the police stopped them.

Long story short, the police found that they didn’t have authority to have those goods. They were drinks, whiskey, cigarettes and those things. Yeah, they’re basically drinks. So, they took those drinks and then took him to the military authorities.

So, the military authorities having found that he had no lawful basis for having those goods, tried him in the Court Martial and found him guilty. Then he decided to appeal to the Court of Appeal. And the court of appeal judgment is what I’m summarizing for you. The court went into the matter and came to a conclusion that, among others, one of his defenses, which is that he was only obeying “superior orders”. That’s the lawful command of a senior. It did not fly.

You know why it didn’t fly? When he gave that defence, the prosecution was allowed to call in Brig Mensah Brown. So, Mensah Brown, that was the superior officer he was referring to, came and denied. He denied giving Yaokumah the instructions to go and bring those drinks. And there wasn’t any other evidence to back that defence, that it was a lawful command he was obeying, or it was a superior command. As a result, the court had no option but to hold that the defence of a lawful command or a superior order could not avail the appellant Yaoumah.

So, for this and other reasons, his appeal was dismissed. So he was, per the judgment, to suffer five years imprisonment and then also dismissal from the army. So, you see that there are dire consequences or consequences for not acting within the law. Yes, there are dire consequences if you just decide to obey any order at all, whether it is lawful or not. If it turns out it is an unlawful order, you have yourself to blame. So that is what we should take note of.

As I mentioned also, this matter of lawful orders or lawful commands or superior orders are not limited to Ghana. Under international law, you also have them featuring there. So, you would find that it came up in the matter of the Nuremberg trials, as I mentioned briefly earlier.

Some of the accused persons put up a defense of having to undertake those killings, the Holocaust, all those things, on grounds that they were carrying out acts of state. So, acts of state, that’s to say that the countries that they were serving. It’s the governments that asked them to do it. Yes, so you see it’s a form of what? A command and also specifically “superior orders”.

They also mentioned superior orders. The court went into all of that and couldn’t uphold those defences because the Geneva Conventions themselves say that you can’t rely on those defences. That is a very key point that we should note that even the conventions themselves say you can’t rely on acts of state or superior orders or lawful command as an excuse.

So those soldiers were personally held liable for their conduct. As I’ve stated, those were very serious offenses. You know, because people were killed. I’m sure when I talk about the killings, you know, the Jews, etc.

So that is the context in which the Nuremberg trials did not uphold those defenses. And so, it is quite appropriate that we have brought in that bit to show that this matter is not only a local issue, but it also has international dimensions. So, I think basically we have made a point and we’ve educated ourselves that we all have to watch out that we don’t get deceived or moved to carry out illegal commands of our superiors, whether we are civilians or we are part of the armed forces. Because for civilians, you’ve seen in the workplace, George Akpass suffered it. The Supreme Court couldn’t help him. The George Akpas versus Ghana Commercial Bank case.

The Supreme Court couldn’t help him because he said if he was carrying out those instructions, some of those conducts, that those were illegal. Then today we have looked at the military and we’ve seen that also in the military, it’s only lawful commands that you must obey. So, on this point, I think we are all wiser now.

Let’s watch out to be sure that we only participate in conduct that are sanctioned by law. Otherwise, we are on our own. And so that is the point of this episode. Thank you very much for your attention. And we look forward to meeting you again in the next episode of Court Rise with me, Martin Kpebu.

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