Fidelity to The Law or to The Public: Patricia Asieduwaa vs The Republic – A Landmark Test for Ghana’s Judicial Independence

The 2023 appellate judgment in Patricia Asieduwaa v. The Republic ignited a national conversation in Ghana, pitting the sacrosanct principle of judicial independence against the intense pressure of public sentiment. The case, involving a conviction for fraudulent advertising and false pretences, became a flashpoint for debate on sentencing disparities, the proper role of appellate courts, and whether judges should adhere strictly to legal statutes or respond to popular outcry. This comprehensive analysis dissects the legal proceedings, contextualizes Ghana’s sentencing framework, and argues why fidelity to the law—not public opinion—must remain the cornerstone of the judiciary.

Introduction: The Crucible of Public Pressure and Legal Duty

The Ghanaian judiciary operates under a constitutional mandate that demands absolute independence. Yet, when high-profile cases involving alleged fraudsters or “charlatans” come before the courts, judges often face a stark choice: apply the law as written, or yield to societal demands for harsh punishment. The Patricia Asieduwaa case, originating from a conviction in the Circuit Court, Accra, and later reviewed by the High Court at Amasaman, exemplifies this tension. After a 15-year prison sentence was imposed, the appellate judge reduced it significantly, triggering accusations of judicial leniency and calls for the Attorney-General to appeal. This article examines whether the reduction was a legally sound exercise of appellate discretion or a dangerous capitulation to the very public sentiment judicial independence is designed to resist.

Key Points at a Glance

• Judicial Independence is Constitutionally Guaranteed: Ghana’s 1992 Constitution explicitly shields the judiciary from external influence, mandating that justice be administered without fear or favour.
• Appeals are Rehearings on the Record: Appellate courts must base decisions solely on the Record of Appeal (ROA), excluding extraneous public knowledge or allegations not proven at trial.
• Sentencing Discretion Must Be Reasonable: While trial judges have discretion, sentences must not be “capricious, arbitrary, or unreasonable” under Article 296 of the Constitution. A 15-year term for defrauding GH¢1,000 was deemed grossly disproportionate.
• “Second-Degree Felony” Does Not Mandate a Minimum Sentence: The classification of an offence under Ghana’s Criminal Offences Act (Act 29) sets maximum penalties, not minimums, preserving judicial discretion for cases of varying gravity.
• Comparative Analysis Reveals Systemic Issues: Sentences for fraud in Ghana often exceed those in comparable international jurisdictions for similar monetary values, indicating a problematic sentencing culture.

Background: Constitutional Foundations and the Judicial Oath

The Independence of the Judiciary in Ghana’s 1992 Constitution

The bedrock of Ghana’s democratic structure is the separation of powers, with an independent judiciary as its guardian. Article 125(1) of the 1992 Constitution declares unequivocally: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” This is not a mere aspirational statement but a justiciable norm. In Tsikata v. Attorney-General, Justice Bamford Addo (JSC) emphasized that the “very tough language” of Articles 125 and 127 was deliberately chosen by the framers to insulate judges from political and public pressure, realizing that the rule of law depends entirely on an untrammeled bench.

The Judicial Oath: A Covenant with the Law

Every judge in Ghana swears an oath before assuming office, enshrined in the Second Schedule of the Constitution. The oath commits the judge to perform functions “without fear or favour, affection or ill-will” and to “uphold, preserve, protect and defend the Constitution and the laws of the Republic of Ghana.” Notably, the oath makes no mention of public popularity or popular will. As Justice Amegatcher (JSC) stated in Kwadwo Appiah v. Kwabena Anane, a court of law does not make decisions based on “emotions, sympathy or sentiments.” The judge’s allegiance is to the Constitution and the law, not to the court of public opinion, which may be uninformed about the evidence presented in a trial.

Analysis: The Legal Mechanics of the Asieduwaa Appeal

The Record of Appeal: The Universe of an Appellate Judge

A fundamental principle of appellate procedure is that the appeal is a “rehearing” based exclusively on the Record of Appeal (ROA). The ROA comprises all pleadings, evidence, transcripts, and rulings from the trial court. Once transmitted (typically via Form 6 under the Court of Appeal Rules), the trial court loses jurisdiction, and the appellate court is seized of the matter. Crucially, the appellate court is bound by the ROA. As held in Republic v. Court of Appeal, Cape Coast (Ex Parte James Gyakye Quayson) and Vicentia Mensah v. Numo Adjei Kwanko II, extraneous information—including public perception, media reports, or the judge’s personal knowledge—cannot be considered. In The Republic v. Sosu Raphael, the Court of Appeal dismissed a ground based on the appellant’s illness because the medical report was not part of the ROA. For Justice Oppong-Twumasi in the Asieduwaa case, the only universe he could legally inhabit was the ROA from the Circuit Court trial.

The Trial Evidence: What Was Actually Proven

The ROA in Patricia Asieduwaa v. The Republic contained specific evidence: On October 7, 2022, the appellant, on her TV station and in her church, advertised she would share “1 billion” (Ghana Cedis) with the financially needy during an all-night service. Bundles of money were displayed. Based on this representation, two individuals, Samuel Ampadu (PW1) and George Boateng (PW2), each gave her GH¢540.00. Three other individuals who had filed witness statements did not appear in court, and those charges were dismissed. The proven loss was GH¢1,080 from two complainants. There was no evidence in the ROA of a “serial fraudster” pattern or defrauding of gullible church members beyond these two complainants. The appellate judge could only assess the sentence based on this proven factual matrix.

Sentencing Law: The Statutory Framework

The offence of defrauding by false pretence is governed by Section 131 of the Criminal and Other Offences Act, 1960 (Act 29). It is classified as a second-degree felony. However, classification alone does not determine the sentence. The key is the prescribed punishment.

• Section 131(1) (General Fraud): No specific sentence is stated. Recourse is to Section 296(5) of the Criminal Procedure Act (Act 30), which sets a maximum sentence of 25 years’ imprisonment. There is no minimum sentence.
• Section 131(2) (Impersonating President/Cabinet): Carries a mandatory minimum of 10 years and a maximum of 25 years. The Asieduwaa case did not involve such impersonation, so only Section 131(1) applied.

Therefore, for a Section 131(1) conviction, a judge has wide discretion under Section 294 of Act 30 to impose: a fine, imprisonment (up to 25 years), both, a bond for good behaviour, or even a caution and discharge. The gravity of the offence is primarily measured by the quantum of money obtained and the degree of deception.

Was the Original 15-Year Sentence Legal? The Proportionality Test

The trial court’s sentence was: Count 1 (Charlatanic Advertisement) – fine of 25 penalty units or 30 days default; Counts 2 & 3 (Defrauding by False Pretence) – 15 years IHL each, to run concurrently. This meant 15 years for defrauding GH¢1,080. Applying the constitutional standard of proportionality (Article 296), a sentence must fit the crime. The appellate judge famously described the 15-year term as “killing a common mosquito with a sledgehammer.” This assessment aligns with sentencing trends:

International comparison further underscores the disproportionality. In the U.S., Hajia4Real (Mona Faiz Montrage) was sentenced to 1 year and 1 day for a $2 million romance fraud scheme. In the UK, Kwaku Adoboli received 7 years for a £1.4 billion fraud. The sentence must correlate with the harm caused. A GH¢1,000 fraud causing minimal individual loss does not justify a 15-year term, which approaches the maximum for a second-degree felony. The appellate reduction to 2 years (with fines and mandatory restitution of GH¢1,000) was a corrective exercise of supervisory jurisdiction to prevent a manifestly excessive sentence.

Debunking Misconceptions About “Second-Degree Felony”

A persistent public argument is that a second-degree felony must attract a sentence of at least 3 years (the maximum for a misdemeanour). This is a legal fallacy. The classification system (first-degree felony, second-degree felony, misdemeanour) primarily serves two purposes:

1. Jurisdiction: It determines which court (District, Circuit, High Court) can try the offence. A District Court (with a 2-year sentencing limit) can try a second-degree felony like fraud (Act 459, Section 48).
2. Maximum Penalty: It sets the ceiling of punishment (e.g., 25 years for second-degree).

It does not establish a mandatory minimum. The Supreme Court in Kokomba v. The State reduced a murder conviction (first-degree felony, punishable by death or life) to manslaughter and sentenced the appellant to 5 years. If the highest crime can draw a 5-year term based on circumstances, a lesser crime like petty fraud can certainly draw less than 15 years. Sentencing is always fact-specific.

Practical Advice: For Law Enforcement, Prosecutors, and the Judiciary

For the Police and Attorney-General’s Department

• Thorough Investigations Before Charging: In cases of alleged serial fraud, investigations must be comprehensive. Police should issue public appeals for other victims to come forward before filing charges. Charging based on one or two complaints while alleging a “syndicate” creates a dissonance that undermines public confidence.
• Charge According to Evidence: The charge sheet should reflect the evidence available. If only two complainants are identified and testified to, charges should correspond to that proven loss. Allegations of wider criminality require corresponding evidence.
• Use Remand Wisely: If investigations into other alleged offences are ongoing, the state can pray for the suspect to be remanded in custody (or granted stringent bail conditions) to complete investigations, rather than rushing to prosecute on a weak or narrow foundation.

For Trial Judges

• Sentencing is a Judicial Act, Not a Popularity Contest: Judges must resist the “court of public opinion” and focus on the proven facts, statutory limits, and principles of proportionality. The starting point is the quantum of loss and the culpability of the offender.
• Consider Restitution and Fines: For financial crimes, a significant fine coupled with an order for full restitution can be a more just and proportionate punishment than a lengthy custodial sentence for a small sum, especially for a first-time offender.
• Document Reasoning: The sentencing rationale must explicitly address why a particular term within the statutory range was chosen, referencing the gravity of the offence, the offender’s circumstances, and the need for deterrence, rehabilitation, and restitution.

For Appellate Courts

• Act as a Sentencing Supervisory Body: The appellate court’s power under Section 30 of the Courts Act, 1993 (Act 459) to “vary… sentence” is a crucial check against trial court excesses or undue leniency. This power must be exercised courageously where a sentence is “shocking to the conscience of the court.”
• Stick to the Record: Public outcry or media reports about the appellant’s character are irrelevant if not part of the ROA. The review is legal, not emotional.
• Provide Clear Guidelines: Appellate judgments in sentencing appeals should articulate the principles applied to guide lower courts and promote consistency.

FAQ: Addressing Common Public Questions

Q1: Did the appellate judge let a criminal go free?

A: No. The appellant was still convicted. The sentence was reduced from 15 years to 2 years in default of paying fines. She was also ordered to pay fines totaling 225 penalty units and refund the GH¢1,000 to the victims. She served time (the 2-year term) and faced financial penalties. The conviction stood; only the length of imprisonment was reviewed.