pg Democracy Watch Vol. 4, No. 1 March 2003 1 A Quarterly Newsletter of the Ghana Center for Democratic Development 12 Democracy Watch Volume 4, No. 1 March 2003 NRC: MATTERS ARISING ISSN: 0855-417X record of Ghana dating from In this issue Commencement and independence to the beginning of the Teething Problems Fourth Republic. The first hearing proceeded as smoothly as one might expect an inaugural session to go. There National Reconciliation Commission Hearings: Matters Arising were some sound system problems and ....... Page 1 The National Reconciliation the air conditioning was not functioning Commission commenced public (both of which have been improved), hearings on Tuesday, January 14, but overall, the hearings got off to a good 2003 at Old Parliament House in start-- indeed, almost a miraculous one, How Independent are Our Accra. The opening ceremony was given that carpet was still being laid in Regulatory Commissions? honoured with greetings from the hearing chamber the day before. ....... Page 6 Archbishop Desmond Tutu and Alex Boraine, former chair and deputy While we applaud the Commission for chair, respectively, of the South its commencement of the public hearings, African Truth and Reconciliation our observations thus far suggest that Commission; Mary Robinson, former there could be some improvements UN High Commissioner for Human made in the way hearings are conducted. Do We have a FIT System to Rights; and Rev. Matthew Hassan In general, the format of the hearings is Resolve Electoral Disputes? Kukah, former member of the too legalistic. That is, the hearings ...... Page 8 Nigerian Human Rights Violation inappropriately resemble courtroom Investigation Commission, among proceedings, more than they do a others. Appropriately, there was no reconciliatory process - with the nine detectable partisan flavour to the Commissioners on a raised dais peering event; the only government member down at the witness who sits below them to speak was the Attorney General, with only the interpreter at his/her side. whose remarks were detailed and The witness is flanked by Commission balanced. staff on one side and any alleged perpetrators and their counsel on the Following the opening ceremony, the other. They are led in their testimony public hearings commenced. The first by Commission counsel, questioned by EDITORIAL TEAM witness’s complaint dated from the Commission members, and then Baffour Agyeman-Duah beginning of the NRC’s mandate, dismissed. A less formal and more Audrey Gadzekpo 1957. It was a symbolically important victim-supportive atmosphere would be E. Gyimah-Boadi decision to commence with such an more conducive to the conciliatory goals H. Kwasi Prempeh early complaint, as it underscored the of the Commission. This could include Edem Selormey fact that the Commission is intended giving witnesses a more formal welcome Kwesi Yankah not only to achieve reconciliation, but upon their swearing-in, allowing also to create an accurate historical witnesses to have family members or Continued on next column Continued on next page Democracy Watch Vol. 4, No. 1 March 2003 2 friends present with them at the witness table, and giving is a learned skill, it also appears to be at least in part because each and every witness the opportunity to say some final the investigation reports do not contain adequate detail. words. The Commission members must also be very careful not to raise expectations of witnesses and the public about the Whether or not the legalistic format is maintained, however, possibility of compensation for financial losses. This they it is crucial that principles of natural justice (such as the have done by asking witnesses what they would like the right to a fair hearing) be keenly observed. In particular, Commission to do to assist them, or by commenting that when an alleged perpetrator or his/her legal counsel is the Commission will try to do what it can for them. Given cross-examining a witness, the witness should be seated that the Commission is not yet fully funded for even the with legal counsel of his/her own so that the witness does duration of its mandate, there is certainly no pot of gold to not appear at such a severe disadvantage to the alleged be doled out to victims when all is said and done. Emphasis perpetrator, as has thus far been the case. must be placed on non-financial forms of reparation, rather than on financial compensation. Reparation would broadly In addition to improvements in the operation of the hearings encompass such things as the offering of an apology, themselves, more could be done to educate the public, memorialization (for example, naming a school or street and possibly the witnesses, about what to expect from the after a person who suffered a wrongful death), or other hearing process. Although the Commission chair symbolic but meaningful gestures to victims or their underscored the fact that no one is an “accused” or an survivors. “accuser” in the opening ceremonies, there was no elaboration of the actual procedure to be followed at the There is no doubt that Commission members are faced hearings. Instead, the first case was called, a witness was with a most difficult task, and one which no one in this sworn in, and someone (presumably counsel for the country has previously undertaken. They must navigate a Commission) stood up and started leading the witness new and important process for this country; a process through a direct examination. There was no explanation necessarily fraught with the ghosts of the past and the politics that a witness may be sworn in with the Bible or the Koran, of the present. They must be impartial and compassionate, or that he or she may choose instead to affirm. There was investigative and reconciliatory. It is a fine line to walk and no explanation that witnesses have the option of having a delicate balance to maintain. The Commission has already legal counsel present, or that an alleged perpetrator may made a very useful and encouraging start. It has been cross-examine the witness through counsel (which occurred extremely open to constructive criticisms and suggestions. on the second day of the hearings, much to the surprise of Democracy Watch will observe their continued progress the public gallery occupants). with interest. To be sure, progress has been made in subsequent proceedings. For instance, the interpreter now commences the proceedings by advising witnesses that they are required NDC Complaints Against to swear or affirm that they will tell the truth in their testimony. The interpreter occasionally bids the witnesses “welcome”. the NRC: How Valid? These small measures assist in humanizing the process and explaining it somewhat to the public. But there is room for improvement. On February 24, 2003, the National Democratic Congress addressed a complaint to the Commissioners of As the hearings continue, the Commissioners must adopt the NRC titled “Memorandum to the National an even-handed approach toward all witnesses, whether Reconciliation Commission on AFRC and PNDC alleged perpetrators or victims. They must be prepared to Appointees and State Officials Appearing Before the ask incisive questions based on the investigation report and Commission”. In its memorandum, the NDC states that it any anomalies in the testimony, while encouraging may have been justified in the fears it expressed in its January reconciliation for the witnesses. Thus far, the Commissioners 7, 2002, petition to President Kufuor requesting that he have not always appeared equally respectful to all witnesses withhold his assent to the NRC Bill. (for instance, a Rastafarian witness was questioned by Bishop Charles Palmer-Buckle about his belief system, a The NDC, in its February 24, 2003, complaint seeks to completely inappropriate and irrelevant line of questioning). make the NRC aware of certain events so that the NRC Further, the Commissioners have rarely displayed an ability “is not used, wittingly or unwittingly, to try to achieve the to test evidence through relevant questioning. Although this political objective of the NPP Government”. The NDC Continued on next column Continued on page 3 Democracy Watch Vol. 4, No. 1 March 2003 3 repeats its concern from the 2002 petition that the perpetrators are often seen at the Commission government is attempting to use the NRC process to tarnish accompanied by counsel, complainants appear at a the NDC and thus gain an electoral advantage in 2004. disadvantage when faced by alleged perpetrators Some aspects of the NDC’s complaint merit consideration, represented by counsel. Commission counsel tends to sit but others are also severely flawed in some respects. quietly throughout alleged perpetrators’ testimonies. They do not represent the witnesses or ask follow-up questions The summary of NDC’s complaints and Democracy to clarify evidence once the witnesses have been cross- Watch’s reactions are follows: examined by the alleged perpetrators or their counsel. In our view, the Commission is fulfilling its obligation to adhere 1. “That the Commission abide by the rules of natural to procedural fairness to the best of its abilities. Where the justice in all cases, inviting accused former or Commission could improve its attention to procedural current state officials and others to its sittings in fairness is to have counsel represent alleged victims when which their alleged victims appear in order to hear they are being cross-examined by alleged perpetrators. their side of the story.” 2. “That adequate and thorough preliminary The NDC enumerates a number of concerns about the investigations be conducted before the public Commission’s progress thus far, largely relating to an hearings”. alleged lack of procedural fairness or “natural justice”. Specifically, the NDC complains that high-ranking officials The NDC complains that witnesses appear before the in the AFRC and PNDC eras who are alleged perpetrators Commission and tell tales of various abuses that are not of human rights abuses before the Commission, have not credible, citing for example Jacqueline Acquaye’s testimony been accorded a fair opportunity to respond publicly to that soldiers forced “a mixture of gunpowder and pepper allegations.